Judgments Of the Supreme Court


Judgment
Title:
Comcast International Holdings Inc. & ors -v- Minister for Public Enterprise & ors; Persona Digital Telephony Ltd & anor -v- Minister for Public Enterprise & ors
Neutral Citation:
[2012] IESC 50
Supreme Court Record Number:
213, 215 & 216/07
High Court Record Number:
2001 9223P, 2001 15119P & 2001 9228P
Date of Delivery:
10/17/2012
Court:
Supreme Court
Composition of Court:
Denham C.J., Hardiman J., Fennelly J., McKechnie J., Clarke J.
Judgment by:
Denham C.J.
Status:
Approved
Result:
Allow And Set Aside
Judgments by
Link to Judgment
Denham C.J.
Hardiman J.
Fennelly J.
McKechnie J.
Clarke J.




THE SUPREME COURT
Appeals No. 216, 215 and 213

Denham C.J.
Hardiman J.
Fennelly J.
McKechnie J.
Clarke J.
[High Court Record No. 2001 No. 9288P]




Between/

Comcast International Holdings Incorporated, Declan Ganley, Ganley International Limited and GCI Limited
Plaintiffs/Appellants
and

Minister for Public Enterprise, Michael Lowry, Esat Telecommunications Limited, Denis O’Brien, Ireland, and the Attorney General

Defendants/Respondents

[High Court Record No. 2001 No. 15119P]





Between/

Comcast International Holdings Incorporated, Declan Ganley, Ganley International Limited and GCI Limited
Plaintiffs/Appellants
and

Minister for Public Enterprise, Michael Lowry, Esat Telecommunications Limited, Denis O’Brien, Ireland, and the Attorney General

Defendants/Respondents

[High Court Record No. 2001 No. 9223P]





Between/

Persona Digital Telephony Limited, and Sigma Wireless Networks Limited
Plaintiffs/Appellants
and

Minister for Public Enterprise, Ireland and the Attorney General

Defendants/Respondents

Reasons delivered on the 17th day of October, 2012 by Denham C.J.

1. These three appeals were heard together by this appellate court, as they had been heard together by the High Court.

2. The appeals were heard on the 10th, 11th and 12th July, 2012.

3. On the 17th July, 2012, the Court indicated that it would allow the appeals and that reasons would be given in October.

4. In this judgment I deliver the reasons why I would allow the appeals.

5. These proceedings were commenced consequent to the decision of the Minister for Public Enterprise, hereinafter referred to as “the Minister”, made on the 25th October, 1995, to award the second GSM mobile telephone licence, hereinafter referred to as “the licence”, to ESAT Telecommunications Limited, hereinafter referred to as “ESAT”. On the 2nd March, 1995, the Minister had announced a bid process for the licence. The deadline for receipt of tenders was extended on the 16th June, 1995, from the 23rd June, 1995, to the 4th August, 1995, and the result of the competition was announced on the 25th October, 1995.

Three sets of proceedings
6. The three sets of proceedings were commenced as follows:-

(i) In the first set of proceedings the plaintiffs/appellants, referred to as “Comcast”, issued a plenary summons on the 15th June, 2001, which was served on the 14th June, 2002. The first set of proceedings relate primarily to the decision of the Minister on the 16th June, 1995, to extend the deadline of the 23rd June, 1995, for the receipt of tenders for the award of the licence. The proceedings seek a declaration that the decision is null and void, and there is a claim for damages for alleged breach of statutory duty, misfeasance in public office, breach of or procuring a breach of the Prevention of Corruption Act, 1906, fraud, deceit, breach of duty and breach of contract. The defendants/respondents, excluding the State defendants/respondents, are referred to as “the respondents”. The State defendants/respondents, who are referred to as “the State”, entered an appearance on the 20th June, 2002. A statement of claim was delivered on the 3rd June, 2005.

6. (ii) In the second set of proceedings serious allegations were made by Comcast; primarily the cause of action and the remedies sought are in relation to the decision of the 25th October, 1995. The plenary summons was issued on the 10th October, 2001 and served on the 4th October, 2002. An appearance was entered on behalf of the State on the 16th December, 2002. A statement of claim was served on the 3rd June, 2005.

6. (iii) In the third set of proceedings a plenary summons was issued by the plaintiffs/appellants, hereinafter referred to as “Persona”, on the 15th June, 2001, which was served on the 10th June, 2002. The summons claimed damages (including exemplary damages) for misfeasance in public office, breach of duty, including statutory duty, breach of contract, breach of legitimate expectations of Persona, breach of constitutional rights of Persona, breach of rights under EU law, and a declaration that the European Communities (Mobiles and Personal Communications) Regulations 1996, hereinafter referred to as “the Regulations of 1996”, contravene EU law. An appearance was entered on behalf of the State on the 20th June, 2002. The statement of claim was delivered on the 21st April, 2006.

Motions
7. The State brought motions, dated the 26th May, 2006, and filed on the 29th May, 2006, giving notice that on the 26th June, 2006 at 11.00 a.m., or at the first available opportunity thereafter, counsel for the Minister, Ireland and the Attorney General would apply for the following reliefs:-

        (i) An order, pursuant to the inherent jurisdiction of the court, dismissing the proceedings as against the Minister, Ireland and the Attorney General, for delay and/or want of prosecution.

        (ii) An order, pursuant to the inherent jurisdiction of the court, dismissing the proceedings as against the Minister, Ireland, and the Attorney General, in the interests of justice.

        (iii) Such further and ancillary orders as the court may deem proper and appropriate

8. The motions were heard by the High Court (Gilligan J.) on the 8th and 9th February, 2007, and judgment was delivered on the 13th June, 2007. On the 3rd July, 2007, the High Court through its orders dismissed for inordinate and inexcusable delay Persona’s action and both actions taken by Comcast. The orders were perfected on the 9th July, 2007.

The High Court Judgment
9. (i) In the High Court, the learned High Court judge found that there was no significance material difference between the applications brought by the State and the grounds of defence raised by Comcast and Persona, referred to as “the appellants”, and as a consequence all three motions were heard together. The High Court decided to deliver one judgment in respect of the three motions on the three sets of proceedings.

9. (ii) The learned High Court judge held that there was no dispute between the parties that the delay was inordinate. So, the first issue that arose for determination in the High Court was whether or not the delay was inexcusable. The learned High Court judge held:-

      “My overall conclusion is that I do not consider that the excuses offered by [the appellants] and, in particular, that they were monitoring the hearings of the Moriarty Tribunal into the award of the second GSM mobile telephone licence and, hence, did not deliver a statement of claim, an explanation that constitutes a valid excuse and, accordingly, I come to the conclusion that the delay involved in the prosecution of all three claims herein is not only inordinate but also inexcusable. The delay, in my view, goes beyond the minimum which may be considered inordinate.”
9. (iii) As the High Court had come to the conclusion that the delay was inordinate and inexcusable, that Court moved on to consider whether the balance of justice favoured the advancement, or not, of the proceedings. The High Court pointed out that no case was made by the State of any specific prejudice having occurred by reason of the inordinate and unreasonable delay. The learned High Court judge stated that the appellants and the State had contributed to the delay involved. He also stated:-
      “In the particular circumstances of this case all the parties who are involved in these three sets of proceedings were parties with an interest in the matters being dealt with at the Moriarty Tribunal. The relevant parties to these proceedings were present on every hearing date relating to any matters touching on the subject matter of these proceedings.”
9. (iv) The High Court stated that the State would suffer a presumed prejudice if the appellants were permitted to proceed with their actions, and assessed the prejudice as moderate. Having analysed the situation further he stated:-
      “I come to the conclusion that where responsibility for inordinate and inexcusable delay rests primarily with the [appellants], where there is presumed prejudice of a moderate nature, where the issues to be determined are of a very substantial commercial nature, where the actions leading to the delay involved are deliberate and conscious, where the prospects of a fair trial have been undermined, where the [appellants] have failed after a late start to advance their proceedings expeditiously, the balance of justice favours the dismissal of the proceedings and, accordingly, I dismiss the [appellants] proceedings as against the [State] for want of prosecution.”
9. (v) The High Court also addressed the application brought pursuant to the inherent jurisdiction of the Court to dismiss the appellants’ claim in the interests of justice, where reliance was placed on Article 6 of the European Convention on Human Rights. Reference was made to O’Domhnaill v. Merrick [1984] I.R. 151; Toal v. Duignan (No. 1) [1991] ILRM 135; Toal v. Duignan (No. 2) [1991] ILRM 140, especially at pp. 142 – 143; and McMullen v. Ireland (ECtHR application No. 42297/98, 29th July, 2004.) The learned High Court judge held:-
      “In my view, for this Court to be asked in 2009 to determine primarily issues of fact that will have occurred at the time of the prospective hearing date some 14 years previously, gives rise to a basic unfairness of procedures, undermines the [State’s] ability to have a fair trial, creates a clear and patent unfairness in asking the [State] to defend the action, and clearly fails to provide the [State] with a hearing within a reasonable time of the alleged cause of action having occurred. In essence, in my view, in a case such as this, it puts “justice to the hazard to such an extent that it would be a derogation (sic) of basic fairness to allow the case to proceed to trial” as per Henchy J. in O’Domhnaill at p. 158. In these circumstances, I come to the conclusion pursuant to the inherent jurisdiction of the court to dismiss the [appellants’] claim as against the [State].”

Notice of Appeal
10. Comcast issued a notice of appeal on the 27th July, 2007. Inter alia, the grounds of appeal were that the learned trial judge erred in fact and in law in considering that the appellants’ delay was inexcusable; that the learned trial judge erred in law and in fact in considering that the balance of justice was against allowing the case to proceed; and that the learned trial judge erred in considering that the appellants’ proceedings should be struck out in the interests of justice. Persona issued a notice of appeal on the 25th July, 2007. Inter alia, its grounds of appeal were that the learned trial judge erred in law and fact in determining that delay was inexcusable; that the balance of justice favoured the dismissal of the proceedings; and that the State wrote to Persona stating that if a statement of claim was not delivered within 21 days then a motion for dismissal of proceedings would issue and consented to the late filing of the statement of claim if it was delivered within 21 days

Issue Paper
11. An issue paper was produced by the State and was before the Court. It set out issues for the Court as follows:-

11. (i) Is this delay in these cases excusable (the appellants having already conceded the delay was inordinate) by reason of the following:-

        (i) the decision of the appellants to adopt a “wait and see” policy in respect of the hearings of the Moriarty Tribunal, “the Tribunal”, having regard to the specific allegations made by the appellants in their pleadings when the cases were initiated;

        (ii) the appellants’ contention that if the appellants had attempted to bring on the proceedings during the Tribunal hearings the State would have resisted this course;

        (iii) Persona’s assertion that the State did not believe the proceedings were dormant having regard to (a) a statement by the former solicitor for Persona to a solicitor from the Office of the Chief State Solicitor, in response to a query by the latter, that no statement of claim would be delivered in the proceedings “for the foreseeable future” as Persona were following the Tribunal, and (b) the delivery of a 21 day letter by the Office of the Chief State Solicitor to Persona seeking delivery of a statement of claim within 21 days under threat of a motion to strike out in default;

        (iv) the nature and extent of the State’s own inaction/delay;

        (v) the nature of and the issues in the proceedings;

        (vi) the time that has elapsed since the events giving rise to these proceedings.

11. (ii) Was the trial judge correct in law in holding that the balance of the interests of justice required the appellants’ claims to be dismissed, having regard to:
        (i) the overall delay in the proceedings and the relative contributions of the appellants and the State respectively to same;

        (ii) the deliberate and conscious nature of the decision of the appellants to “wait and see”;

        (iii) the holding of the existence of prejudice of a modest nature to the State;

        (iv) the likely nature and extent of the issues and evidence at the trial;

        (v) the finding that to ask the State to defend the proceedings would be unfair and undermine their ability to have a fair trial;

        (vi) the effect of the provisions of Article 6 of the European Convention on Human Rights;

        (vii) the exercise by the learned trial judge of his discretion having regard to the matters referred to in his judgment as set out above.

Law
12. In all the circumstances, the primary relevant law is that stated in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 495, hereinafter referred to as Primor, where the issue was whether proceedings should be dismissed for want of prosecution. In delivering a judgment, Hamilton C.J., at p. 475, summarised the relevant principles of law as follows:-
      “(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

      (b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay, was inordinate and inexcusable;

      (c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

      (d) in considering this latter obligation the court is entitled to take into consideration and have regard to


        (i) the implied constitutional principles of basic fairness of procedures,

        (ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

        (iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,

        (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

        (v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

        (vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

        (vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.”

These are the principles of law relevant to the appeals before the Court. This is not an appeal relating to a criminal trial, and thus the law as to delay and a criminal trial does not apply.

13. The nature of an inordinate and inexcusable delay requires to be considered in all the circumstances of the case. Thus, the factors of each case require to be analysed.

In addition, in recent times there has been an acknowledgement that cases may not be let lie, in a laissez faire attitude, for the parties to move. There is a requirement to ensure that cases are progressed reasonably. This approach has been the subject of litigation in Ireland and has also been addressed by the European Court on Human Rights. For example, in Price and Lowe v. The United Kingdom 43185/98, there was an application alleging a violation of Article 6 of the Convention in connection with the length of the proceedings at issue. Article 6 provides:

      "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time..."
The ECtHR reiterated that the reasonableness of the length of the proceedings must be addressed in the light of the circumstances of the case, and having regard to the criteria laid down in the Court's case law, in particular:
        • The complexity of the case,

        • The conduct of the applicant,

        • The conduct of the relevant authorities, and

        • The importance of what is at stake for the applicant in the litigation.

The Court held that the manner in which a State provides for mechanisms to comply with this requirement - whether by way of increasing the number of judges, or by automatic time-limits and directions, or by some other method - is for the State to decide. In this case the domestic law is that stated in Primor, where the factors identified by Hamilton C.J., as set out previously, are not dissimilar to the criteria set out in Price.

Decision

14. As indicated on the 17th July, 2012, I would allow the appeals. Consequently the proceedings may continue in the High Court, for the following reasons.

Reasons


Issues
15. On behalf of the appellants it was submitted that there were three issues to be determined:-
            (i) Is the delay an excusable delay? (It was accepted that it was an inordinate delay).

            (ii) If it was not excusable does the balance of justice mean it should be struck out?

            (iii) There was a free standing issue as to whether the interests of justice enable the claim to be dismissed.

I shall follow this sequence in giving my reasons.

In essence, as it was accepted that there was inordinate delay by the appellants, at issue was whether the delay by the appellants was excusable in all the circumstances of the case.

Facts
16. The dates as to the proceedings in these appeals are not in issue, as they are not contested. The dates when the proceedings were issued, were delivered, and the various steps taken, are not disputed and have been set out earlier in this judgment.

Primor – inordinate delay
17. The relevant law is as described above by Hamilton C.J. in Primor.

18. Thus, the first issue is whether there has been inordinate delay by the appellants in moving the proceedings. The relevant time period to consider whether or not there was inordinate delay was from the commencement of the proceedings until the delivery of the statement of claim. Both Comcast and Persona accepted that there was inordinate delay. Thus, the first aspect of the test under Primor was met.

Primor – inexcusable delay
19. The second issue to address is whether the delay was excusable.

Claim of corruption
20. In considering this case the serious and important nature of the matters of corruption claimed by the appellants is a relevant factor.

21. Thus, for example, the plenary summons issued by Comcast, on the 10th October, 2001, claims that the decision to award the licence to Esat is unlawful and void, and damages are sought on a number of alleged bases, including misfeasance in public office, fraud, and deceit.

22. In the statement of claim, delivered on the 3rd June, 2005, Comcast claims:-

      “Wrongfully, and in breach of contract, breach of duty and breach of statutory duty, the Minister interfered with the integrity of the tender process. He abused his public office by intervening in the tender process to ensure that the licence be awarded to Esat. He accepted payments made by or on behalf of Esat and/or Denis O’Brien to ensure the award of the licence to Esat and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat. In doing so, he breached the Prevention of Corruption Act, 1906. In representing the tender process and the award of the licence to Esat as having been the result of a fair and honest tender process, he engaged in fraud and deceit and abused his office.”
23. In both of the statements of claim, in each of the proceedings, Comcast stated explicitly that it was unable to give full particulars of the wrongdoing of the Minister, pending the conclusion of the investigations the subject of inquiry by the Tribunal.

24. However, on the basis of the information disclosed at the public hearings of the Tribunal to that date, Comcast stated that “it is clear that the Minister engaged in the following forms of wrongdoing:-

(a) The Minister compromised the integrity of the tender process by breaching the guidelines for communications with bidders:

        i. On August 16th 1995, while the bids were being evaluated, the Minister met with the chairman of one of the bidders, the Persona Consortium, and discussed that consortium's bid;

        ii. On September 15th 1995, the Minister met with Mr Tony O'Reilly, a representative of another bidder, the AT&T consortium, and made reference to that consortium's bid;

        iii. In September 1995, the Minister met with Denis O'Brien and suggested that IIU Nominees Limited ("IIU") should become involved in the Esat consortium.

(b) The Minister, his servants or agents disclosed or caused to be disclosed confidential information in relation to the bid process to Esat;
        i. Esat was informed of the fact that the competition structure was to be changed from a "straight auction" to "beauty contest" and of the extension of the bidding process prior to any such information being -disclosed to the other bidders;

        ii. The Minister, his servants or agents, informed Esat of the contents of discussions with the European Commission in relation to the imposition of a cap on the licence fee. Access to this information placed Esat at a significant competitive advantage;

        iii. The Minister, his servants or agents disclosed or caused to be disclosed certain of the weightings to be applied to the evaluation of bids.

(c) The Minister modified the terms of and unlawfully interfered with the tender process to favour Esat.
      i. The Minister, his servants or agents intervened to ensure the imposition of the cap of 15m on the licence fee;

      ii. The Minister amended the timing of key milestones in the tender process, including the final date by which tender bids were to be lodged. The original closing date for receipt of submissions of tenders was June 23rd 1995. This date was extended to August 4th 1995. The purpose and effect of the extension of this deadline was to favour Esat;

      iii. The evaluation methodology was modified with the aim and effect of favouring Esat.

      iv. The Minister intervened in the substantive evaluation process to ensure that the choice of successful bid was determined other than by reference to the recommendation of the project group;

      v. The Minister failed to conduct any or any appropriate assessment to satisfy himself as to the financial and/or technical capacity of Esat prior to the award of the licence;

      vi. Notwithstanding the Minister's knowledge that the Esat bid lacked reasonable financial capability, the Minister nonetheless awarded the licence to Esat;

      vii. The Minister expedited the selection and announcement of the successful bid and, in so doing, failed to have any or any adequate regard to the final evaluation report prepared by the external consultants ("AMI") appointed to advise on the evaluation of bids, which report did not identify a definitive winner. The Minister made a public announcement on October 25th 1995 to the effect that the competition was won by Esat prior to the presentation of the final evaluation report to the Department, and prior to the consideration of that report by the project group;

      viii. The Minister unlawfully procured or facilitated the entry of IIU into the Esat consortium after the submission by Esat of its bid on August 4th 1995. In so permitting a post-submission amendment to the bid, he breached the rules of the tender process;

      ix. The Minister was aware of the involvement of IIU in the bid prior to the award of the licence to Esat. Nonetheless, he failed to take any steps to assess the financial capacity of the Esat consortium to the detriment of the other bidders. No assessment of the financial standing of IIU was conducted by the Minister, his servants or agents, until May 1996, prior to the signing of the licence agreement by the Minister;

      x. The Minister abused his position prior to the award of licence to Esat by intervening with the Electricity Supply Board ("ESB") to ensure that Esat would be permitted to erect masts on ESB pylons;

(d) The Minister accepted improper payments made by Denis O'Brien and/or Esat which payments were made to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat.
      i. Subsequent to the announcement of the decision to award the licence to Esat, the sum of US$50,000 was paid, in December 1995, by Esat to an offshore account operated by David Austin, a senior Fine Gael fundraiser. The sum of €50,000 was paid by David Austin to Fine Gael on May 6th 1997. The said sum was repaid on March 2nd 1998. Fine Gael indicated that it could not accept the payment of the sum which Mr O'Brien claimed to have been a donation from Esat. [Comcast] contend that the payment of US$50,000 was intended by Denis O'Brien to influence the outcome of the tender process and/or to ensure that Esat was awarded the licence and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat;

      ii. The Minister accepted the sum of €100,000 paid by Denis O'Brien in early/mid-1996. The aim and effect of this payment was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat;

      iii. In July 1996, Denis O'Brien arranged for the payment of 150,000 to David Austin, who transferred the sum of 147,000 to the Minister. The aim and effect of the transfer of funds from Denis O'Brien to David Austin and subsequently to the Minister was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat;

      iv. Denis O'Brien financed the purchase of a property in Mansfield, England acquired by the Minister. The aim and effect of the provision of finance for the acquisition of the Mansfield property was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat.

And [Comcast] reserve[d] the right to deliver further particulars hereof at any time before the trial of this action.

25. In the statement of claim delivered by Persona, on the 21st April, 2006, it was claimed, inter alia, that about the 2nd March, 1995, a conspiracy was hatched whereby the Minister for Public Enterprise, its servants or agents, and/or the Minister, conspired with another, namely Esat, its servants or agents, to promote an inevitable competition result. In the furtherance of the conspiracy the parties infiltrated or penetrated the competition and/or in the alternative ignored or disregarded the competition process and/or in the alternative utilised the process for the purpose of concealment and thereby ensuring the granting of the licence to Esat. Also, it is claimed that on dates unknown the Minister, its servants or agents, acting in purported exercise of their powers and functions and purportedly acting in the best interests of the public, but the Minister acted unlawfully and maliciously and committed an act or acts, or knowingly acted ultra vires or acted with reckless indifference and as such, they deliberately or dishonestly abused the power conferred, abused authority, abused trust with the known consequences that it would cause injury and damage to Persona. There is a claim for special damages. There is also a claim for aggravated, punitive and exemplary damages on the basis, inter alia, of the seriousness of the corrupt practices engaged in; the fact that the corrupt practices were at the highest level, i.e. they involved the Minister; the fact that the Minister abused his office and his authority and breached trust; the fact that the Minister used his office for a personal self serving purpose; the fact that the corrupt practices were not merely opportunistic but were carefully planned and designed; the fact that the Minister wantonly and unlawfully utilised his position of trust in disregard of the public interest.

Affidavits
26. The reasons for the delay by Comcast and Persona were stated on affidavit by Damien Young and William Jolley, respectively.

27. Damien Young deposed that at the time of issuing the proceedings, Comcast believed that the award of the licence was wrongful. He stated that the subject matter of these proceedings was also the subject matter of the Tribunal and that it had been anticipated that the Tribunal would have completed its work in relation to the licence module within a one year following the issuing of the plenary summons, i.e. by June 2002. He deposed: “Unfortunately, this was not the case”. When Damien Young deposed his affidavit on the 23rd June, 2006, the licence module of the Tribunal had not yet been completed. The module had been going on for years, and was suspended for a time pending an appeal to this Court.

28. Damien Young explained:-

      “At the time of the issuing of the proceedings, [Comcast] believed that the award of the second GSM licence to [Esat], was wrongful. However, [Comcast] were not in a position to know the detail of the manner, nature and extent of the breaches of the tender process. They hoped that this detail would be clarified by the Moriarty Tribunal, permitting the delivery by [Comcast] of a particularised Statement of Claim.”
29. Damien Young deposed that while he accepted that there had been delay, he deposed that it was excusable as the subject matter of the proceedings was also the subject matter of continued investigation by the Tribunal. He stated that the complexity of the subject matter of these proceedings is evident from the time taken by the Tribunal in investigating the matter. He stated that Comcast cannot be expected to be aware of all the details of the improper payments and conduct which Comcast believe resulted in the award of the licence to Esat. He deposed that it was reasonable for Comcast to await the information provided in the public hearings of the Tribunal prior to the delivery of the Statement of Claim. He also deposed that there was no particular prejudice suffered by the State.

30. In his affidavit William Jolley deposed, inter alia, that the interference by the Minister was a complete abuse by the Minister of his office. In 1996 Persona had made a complaint to the European Union in relation to the manner in which the competition for the grant of the licence was conducted, but was told that the matter was essentially one for the Irish courts. He deposed that in May, 2001, the Tribunal indicated that it was commencing investigations into the circumstances in which the Minister, Michael Lowry, granted the licence to Esat. He stated that this announcement by the Tribunal confirmed the concerns of Persona into the grant of the licence and a decision was made to issue the within proceedings.

31. He deposed:-

9. “The Moriarty Tribunal went into public session in relation to the circumstances surrounding the grant of the said licence in December, 2002. The [Minister] has been represented at the public hearings by Mr. Shaw (on behalf of the Chief State Solicitor's Office). [Persona’s] former solicitors, and in particular Mr. Gerald Moloney and John O'Donovan, have attended more or less every public sitting of the Tribunal since 2001. Mr. Moloney has informed me that on a number of occasions casual conversations have taken place between him and Mr. Shaw. In particular, I am informed by Mr. Moloney that not long after the service of the proceedings Mr. Moloney met Mr. Shaw at the Tribunal and was asked by Mr. Shaw if he was going to deliver a Statement of Claim. Mr. Moloney told Mr. Shaw that he would not be delivering it for the foreseeable future for the very reason that the [Persona] (and their representatives) would firstly be following the evidence which was likely to unfold at the Tribunal. Mr. Moloney informs me that at no stage did Mr. Shaw object to this proposed course of action and indeed if anything appeared to be relieved as his Clients had more than enough to do in dealing with the Tribunal.

10. Having regard to the constant attendance by the [Persona’s] legal representatives at the Tribunal and the aforementioned conversations, the [State] are well aware of [Persona’s} intention to prosecute these proceedings. During the course of the Tribunal hearings Tony Boyle, a director of [Persona], has given evidence and has been subjected to cross examination by Counsel on behalf of the [Minister]. During the course of that cross examination Counsel for the [Minister] has referred to the existence of the proceedings and while suggesting that the Tribunal is being used as "a kind of stalking horse" for the proceedings (which Mr. Boyle did not accept) never made any complaint about any alleged delay or prejudice being suffered by the Minister or any of the other State Defendants.

11. The within proceedings are serious and complex and involve the assimilation of a large volume of information and evidence. Certain information and avenues of inquiry have been identified during the course of the public sittings which have assisted [Persona] in the preparation of their case and the assimilation of evidence outside of the Tribunal. The prosecution of the case is not, however, dependent upon any particular finding by the Moriarty Tribunal and it is [Persona’s] intention to proceed with these proceedings irrespective of what conclusion the Moriarty Tribunal may come to.

12. Representatives of the [State] have given evidence to the Moriarty Tribunal as to their involvement in the licence competition. That module of the Moriarty Tribunal has not been completed yet as far as I am aware no complaint has ever been made by or on behalf of the [State] or the officials of the Department of any prejudice due to the remove in time between the Tribunal hearings and the events under investigation dating back to 1995. Furthermore, it is apparent from the public hearings of the Tribunal that considerable documentation is available to assist the various Department officials in their recollection of events where such is necessary.

13. The timing of the issue of the current motion is of significance. As appears from exhibit "MS1" to Mr. Shaw's Affidavit no complaint was made between 2002 and 2006 in respect of [Persona’s] failure to deliver a Statement of Claim. On the 23rd March, 2006 I served on the Chief State Solicitor's Office a Notice of Change of Solicitor. Within a week of receipt of that letter Mr. Shaw wrote to me seeking the delivery of a Statement of Claim and consenting to its delivery within 21 days. Nowhere in that letter does Mr. Shaw complain of any prejudice; on the contrary, he invites [Persona] to proceed with their claim and it is difficult to understand what has occurred between that date (31st March, 2006) and 26th May, 2006 to bring about such a fundamental change in approach. [Persona] believe[s], and I concur, that the request for the delivery of a Statement of Claim made immediately after the service of a Notice of Change of Solicitor was done so to "catch the plaintiffs on the hop.” I had in fact sought a short extension of the 21 day period on 5th , 11th and 21st April, 2006 but never received any response to that request. I beg to refer to copies of the three letters upon which marked with the letter "WJ" I have endorsed my name prior to the swearing hereof. Furthermore, I also rang the Office of the Chief State Solicitor on a number of occasions and left messages but my calls were largely ignored and disregarded. In fact, the Statement of Claim was delivered within the 21 day period allowed in the letter of 31st March, 2006.”

Application to strike out proceedings
32. As may be seen from the affidavit of William Jolley, quoted previously, the position of Persona was also that they were following the evidence likely to unfold at the Tribunal. Further, that the State were aware of this approach.

33. On Monday the 9th May, 2005, the High Court (Kelly J.) ordered in both of the proceedings by Comcast that unless Comcast do within 28 days from the 9th May, 2005, deliver a statement of claim to the fourth named defendant, Mr. Denis O’Brien, that Comcast’s claims would stand dismissed for want of prosecution as against the fourth named defendant for failure to deliver a statement of claim within the time prescribed by the Rules of the Superior Court.

34. The statements of claim in both Comcast proceedings were delivered on the 3rd June, 2005, i.e. within the time required by the order of the High Court.

35. Thus, Comcast had met the requirements of the High Court order.

36. On the 28th July, 2005, the solicitors for the fourth named defendant sought further particulars in the Comcast proceedings. The replies to notice for particulars are dated the 12th January, 2006. On the 7th March, 2006, a notice of change of solicitor on behalf of the fourth named defendant was filed. On the 15th May, 2006, a defence and counterclaim on behalf of the fourth named defendant was served. On the 14th November, 2006, a defence to the counterclaim was delivered on behalf of Comcast, and notice of particulars sought on behalf of Comcast on the counterclaim.

37. It was in the midst of these circumstances that, on the 26th May, 2006, the State issued the motion, the subject of this appeal, to dismiss the proceedings against the State.

Decision on excusability
38. It is clear from the evidence before the High Court and this Court that the primary reason for the delay in the proceedings was the decision taken by Comcast and Persona to await the completion of the investigative section of the Tribunal into the granting of the licence.

39. Usually a deliberate decision by a party to delay proceedings is not excusable, but this case is unique for a number of reasons. These reasons include the following:

(i) The facts which form the foundation for the claim were being investigated by a Tribunal of Inquiry at the same time as the proceedings were contemplated and then commenced.

(ii) The nature of the facts alleged are very serious and rare, i.e. a claim of corruption of a Minister of the Government.

(iii) In addition, the facts in such proceedings are of their nature very difficult to expose and particularize.

(iv) Also, the case is complex.

(v) Counsel for Comcast put the matter starkly, stating that the excuse for the delay was that the appellants were not in a position to prosecute the claim in any wholly informed way until they were educated by the investigative hearings of the Tribunal.

(vi) It is relevant also that during the time in issue the State took no active step to advance the court proceedings. On the facts, the State took no steps to advance the proceedings from the serving of the three plenary summonses in 2002 to April, 2006, when the State gave consent to the late filing, within a specific time, of Persona’s statement of claim in April, 2006, which was delivered within that time on the 21st April, 2006. However, the State, in May, 2006, issued motions to dismiss for want of prosecution each of Persona’s and Comcast’s proceedings, which became the subject of this appeal.

In contrast to the State’s inaction, a natural person, Mr Denis O’Brien, who is the fourth named defendant in the Comcast proceedings, in late 2004, sought to dismiss for want of prosecution Comcast’s claims against him by application to the Master of the High Court, which was refused, and then by application to the High Court, which was also refused if Comcast delivered its statement of claim to Mr O’Brien within 28 days of the order of the High Court, which was made on the 9th May, 2005. Comcast delivered the statement of claim to Mr O’Brien within the time limit set by the order and delivered the statement of claim to the State on the 3rd June, 2005. Mr O’Brien then sought particulars from Comcast, which were provided by Comcast in January, 2006, and Mr O’Brien delivered a defence and counterclaim in May, 2006, to which Comcast responded to in November, 2006.

Thus, the High Court addressed the issue of delay in 2005 and required the statement of claim to be delivered rather than dismiss the proceedings; the sequence of events that followed demonstrated the engagement by Comcast with a party who sought to advance the progression of the proceedings in 2005 and 2006 and provides context to view the State’s response to the appellants’ proceedings. In all the unique circumstances of this case, there was, at the very least, a de facto acquiescence in the delay in the proceedings on the State’s behalf.

(vii) The inaction of the State between 2002 to 2006 in these proceedings even continued after the statements of claim of Comcast were delivered, when they failed to react to the delivery of the first two statements of claim in 2005. The State did not proceed to seek particulars such as would be expected in a complex case.

(viii) During those years, 2002 to 2006, all the parties, to one degree or another, were engaged in and monitoring the investigations of the Tribunal into the granting of the licence.

(ix) An unusual feature of the case is that, as a consequence of the Tribunal inquiries, witnesses have made statements and given oral evidence relevant to the granting of the licence. Consequently, evidence has been gathered because of the investigative hearings of the Tribunal. Thus, while the appellants would need to present their evidence in proceedings before the courts, this is not a case where, years after an event, with no intervening warning, defendants are required to defend a claim.

(x) The State was on notice of the appellants’ approach, i.e. of the appellants’ decision to wait until the investigative section of the Tribunal into the granting of the licence had progressed, before serving the statements of claim. This notice may have been express, in accordance with the evidence deposed by William Jolley, as set out above, of conversations between Mr. Moloney and Mr. Shaw. It was not contradicted. Or the position may have been implied. Whichever way the situation is considered the facts are that the State was participating in the Tribunal, had been served with the plenary summonses in these proceedings, and yet took no step to seek to advance these proceedings during these years. Indeed, the State did not object until the 29th May, 2006, when it filed its motions to dismiss for delay and/or want of prosecution. I take this, at the very least, as a de facto acquiescence in the delay in the proceedings pending the conclusion of the investigative sessions of the Tribunal, in all the unique circumstances of the case.

(xi) Persona relied on the letter of the 31st March, 2006, as indicating the State’s position. The letter stated:-

      “Please note that if you do not file a statement of claim on behalf of your clients within 21 days from the date hereof, I am instructed to proceed with a notice of motion, seeking to strike out these proceedings for want of prosecution, without further notice to you.

      You might further note that on behalf of the [State], I hereby consent to the late filing of the statement of claim by you up to and including 21 days from date hereof.”

Persona responded by delivering their statement of claim within 21 days. Persona’s reliance on the terms of the letter including the consent to the late filing of the statement of claim, was a reasonable position.

(xii) In the special circumstances, because of the nature of the claim of corruption, where it is alleged that the wrongs in this case were concealed, and covert, this approach by the appellants, and indeed by the State, is understandable. The Tribunal was investigating the wrongs claimed by the appellants, it had the resources, and could compel witnesses to advance its investigation into the circumstances of the licence.

(xiii) Of course, the findings of the Tribunal are, under current law, not admissible in the civil proceedings, and the appellants do not seek to admit such findings. However, the investigations of the Tribunal have exposed information, facts, documents, and witnesses of assistance to the appellants. The appellants awaited the completion of the investigative stages of the Tribunal – they did not await the Report.

(xiv) No actual prejudice was found to attach to the State. The learned High Court judge held that:-

      “While no actual prejudice has been referred to, I am satisfied that there is presumed prejudice on a moderate level.”
However, there was no claim of specific prejudice to the State, such as the death of a witness. References as to prejudice were general, such as in the grounding affidavit of Mr. Shaw where he states at paragraph 13 “[w]hile the statement of claim was delivered, I say the plaintiff’s delay has been inordinate and inexcusable and therefore prejudicial […]”. The submissions to this Court have a section on prejudice, where issues such as reputational damage and the difficulty of meeting the award of damages, inter alia, are considered. In fact, in the absence of an evidential foundation for a finding of specific prejudice, e.g. no absence of witnesses alleged, no concrete difficulty alleged, any analysis of the issue of prejudice would be a matter of speculation.

40. In general, it is not open to a party to decide unilaterally not to proceed with proceedings in a case for a particular time and reasons. However, in the interest of fair and just proceedings, there are exceptions. This is one such exception, where in the interests of justice, I find that the delay is excusable.

41. An analogy may be drawn between this case, where there was a unique situation arising from the hearing of a Tribunal and civil proceedings, and the decisions in Cosgrave v. Director of Public Prosecutions [2012] IESC 24 and Kennedy v. Director of Public Prosecutions [2012] IESC 34. While a Tribunal is not the administration of justice the use of that model to investigate matters of public interest may have an effect on legal decisions as to when to advance court proceedings. While there are limitations on a tribunal of inquiry, e.g. the findings are legally sterile, the existence and working of a tribunal are facts which the Court recognises and which may, as in this case, be relevant to the process of litigation.

42. In the unique circumstances of this case, for the reasons given, I am satisfied that the delay is excusable. As I find the delay to be excusable, there are no grounds to dismiss the proceedings.

43. As I am satisfied that the delay is excusable, it is not necessary to proceed to the third aspect of the Primor test, i.e. the test to determine, as a matter of discretion, whether the balance of justice is in favour of or against the proceedings continuing.

44. However, if it had been necessary to consider this aspect of the test, I would have determined, as a matter of discretion, on the facts, that the balance of justice is in favour of the case proceeding. In such a determination I would take into account (i) the fairness to both parties, in all the circumstances, (ii) the absence of specific prejudice to the State; (iii) the fact that the parties and witnesses have over the years given statements and evidence before the Tribunal, so that the situation is not one where proceedings are commenced or continued long after events where there has been no reference to the facts in the meantime; (iv) the delay by the State during the proceedings; (v) the conduct of the State, which was a de facto acquiescence during 2002 to 2006; (vi) the fact that the State stated in a letter of the 31st March, 2006, that a motion to dismiss would be brought if the statement of claim was not delivered within the time period specified and consented to an extension of time for Persona to deliver its statement of claim, and Persona complied with the terms of the letter; (vii) in all the circumstances, there is no risk to a fair trial or serious prejudice to the State; (viii) these proceedings make serious allegations of corruption by a Minister of the Government, not a matter which should be struck out on a technicality but which should be addressed in a full hearing in open court. In submissions it was argued by the State that the appellants’ actions were not in the public interest, but were private commercial interests. However, this is not a case between private companies, rather it involves allegations of corruption by a Minister of State. There is a public interest in determining such a claim of corruption in high office. It is a matter of public interest as to whether a Minister of Government corrupted a State process. This is an important aspect of the case.

45. The parties, in essence, argued the appeal in the Primor principles. It is not an appeal relating to delay in a criminal trial and thus that jurisprudence is not of assistance.

Interests of Justice
46. There was a free standing issue raised as to whether the interests of justice enable the claim to be dismissed. However, Primor pointed out that the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so. Thus, the foundation for this common law is the interests of justice. Primor sets out a methodology. In applying that methodology, in analysing the facts of a case, the Court is required to consider all the circumstances of the case. Consequently, applying the principles described in Primor addresses the interests of justice of the case.

Conclusion
47. On the unique facts of this case, for the reasons given, I would allow the appeals.






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