Gaeilge

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:	Hardiman J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Denham C.J. Link Hardiman J. Link Fennelly J. Link McKechnie J. Link Clarke J. Link

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Denham C.J.
Hardiman J.
Fennelly J.
McKechnie J.
Clarke J.

Between:

Between:

JUDGMENT of Mr. Justice Hardiman delivered the 17th day of October, 2012.

1. I would allow the appeal and refuse to grant the relief sought by the State in its Motions. These Motions are to strike out the proceedings of each plaintiff on the ground of delay, and on the ground of want of prosecution. I would refuse these reliefs because I believe that, in the circumstances of this case the delay of which the State defendants complain, though very long, is excusable.

2. This being so, on the authority of the decision of this Court in the leading case of Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459, there is no basis for dismissing the case and accordingly no need to proceed further to consider the balance of justice as would have to be done if the Court found that the delay was both inordinate and inexcusable.

3. Accordingly, like the Chief Justice and Mr. Justice McKechnie, I believe that the delay is wholly excusable and dismiss the present application on that ground. The bulk of the judgment which follows is devoted to an exposition of the circumstances which render the delay excusable in the present case.

4. This case is absolutely unique, without precedent or parallel in the ninety year history of the State. It will be profoundly worrying, indeed alarming, in its implications for Irish public administration if the allegations made by the plaintiffs turn out to be true. But the State defendants say that the action should be stopped here and now, without the merits being decided, on account of delay by the plaintiffs.

5. It is important to understand the uniqueness of the case. It is not merely unusual or odd. It is not simply a case of a kind rarely met with. It is unique - there is no precedent at all; I have never heard of anything like it in this jurisdiction. The quality of uniqueness is central to my analysis of the law applicable on the present application. Because the case is unique, the decided cases merely supply the general principles to be applied, rather than providing a case directly in point, or a binding precedent. Equally, because it is unique, the present case is unlikely itself to be of much value as a precedent; I do not therefore intend to make general suggestions for the development of our jurisprudence on delay in this judgment. This case does not represent a new category of case: it is simply unique and sui generis.

6. Certain facts are inescapable. The Government and the Dáil established a public Tribunal of Inquiry into the payment of monies to two named people, one of whom was Mr. Michael Lowry, the former Minister and current T.D. who is alleged in these proceedings to have acted corruptly in the award of a very valuable commercial permit, the second mobile phone licence for Ireland. This Tribunal, some years after its establishment, decided to investigate, as a separate and specific topic, whether or not there had been corruption in connection with the award of the licence. The Tribunal did not consider the evidence against Mr. Lowry implausible. The plaintiffs now wish, if they can, to prove these allegations in Court. But the State defendants, the moving parties in this Motion, wish to dismiss the proceedings without a hearing on the merits, on grounds of delay, and consequent alleged injustice.

7. I wish to emphasise that the present case is not unique simply because it is based on a claim that a Government Minister acted corruptly, that a public administrative process, designed to be “impermeable to politics” was allegedly corrupted. The principal relevant unique factor is that Dáil Eireann and the Taoiseach, decided to set up a Tribunal of Inquiry which itself decided to investigate the very matter which is at the heart of these proceedings, the award of the second mobile telephone licence. Its inquiry was estimated by the sole member of the Tribunal to be capable of concluding in a year: in fact it took thirteen times that long. But it produced evidence of a money trail which, if capable of being established in legal proceedings, would be extremely valuable to the plaintiffs which evidence (I am satisfied for reasons given below) would not have been available to them by any other means.

8. This judgment relates to motions by the State defendants to strike out the plaintiffs’ case for want of prosecution and delay in two separate proceedings, those named in the title hereof. I have concluded that it is possible to give a single judgment on these two motions. For convenience, and to avoid any element of unnecessary repetition, I have set out the history and the pleadings in the Comcast case only. But the essential issues are the same in each of the cases. A significant difference between the two sets of proceedings is that the second set, those in which Persona the lead plaintiff, is against the State defendants only: in the other proceedings, those brought by Comcast, the plaintiffs have elected to sue Mr. Michael Lowry T.D. and Mr. Denis O’Brien personally as well as the State defendants. No notice claiming indemnity or contribution has been served by any defendant. Another notable distinction between the cases is that the Persona plaintiffs received correspondence from the State requesting delivery of a Statement of Claim, which they say amounted to an acquiescence in the delay up to that time. In the view which I take of the issues raised by the motions, it is not necessary to consider this individual feature.

Pleadings.
9. On the 10th October, 2001, the Comcast plaintiffs issued a plenary summons against the defendants in the following form:

“The plaintiffs claim is for:

(1) A declaration that the decision, announced on the 25th October, 1995 to award the second GSM Mobile Telephony Licence to Esat Digifone Ltd. is unlawful, null and void and to no effect;

(2) Damages for:


(a) Breach of statutory duty;

(b) Misfeasance in public office;

(c) Breach of, or procuring the breach of, the Prevention of Corruption Act, 1906;

(d) Fraud;

(e) Deceit;

(f) Breach of duty;

(g) Breach of contract;


Further or other relief as to this honourable court it seems fit to grant;

(3) Interest pursuant to statute,

(4) The costs of these proceedings.”

10. The wrongdoing alleged against various defendants is set out in the Statement of Claim delivered the 3rd June, 2005, in the following way:

“The Plaintiffs are unable to fully particularise the extent of the wrongdoing of the Minister, pending the conclusion of the investigations currently the subject of investigation by the Tribunal of Inquiry into Payments to Mr Charles Haughey and Mr Michael Lowry (“the Moriarty Tribunal”). However, on the basis of the information disclosed at the public hearings of the Moriarty Tribunal to date, 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 pad, 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. The Plaintiffs 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 warding 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 Minster 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 the Plaintiffs reserve the right to deliver further particulars hereof at any time before the trial of this action.

16. Further, the Third and Fourth Named Defendants owed a duty to the Plaintiffs and each of them not to engage in wrongful actions designed to interfere with the integrity of the tender process and to ensure that the licence was, in breach of the rule governing the tender process, awarded to Esat.

PARTICULARS OF UNLAWFUL ACTIONS ENGAGED IN BY THE THIRD AND FOURTH NAMED DEFENDANTS

The Third and/or Fourth Named Defendants caused the payments referred to at paragraph 15(d) above to be made to the Minister in breach of the rules of the tender process and of the provisions of the Prevention of Corruption Act 1906, as amended. The purpose and effect of these corrupt payments was 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. The Plaintiffs reserve the right to deliver further particulars hereof at any time before the trial of this action.”

The defendants.
11. The first-named defendant is the Minister for Public Enterprise which is a corporation sole with perpetual succession. This phrase connotes the office itself, and not the individual holder of the office at the present time, or any previous holder. The office is now denominated the “Minister for Enterprise Trade and Employment”.

12. The second-named defendant, Mr. Michael Lowry, is a Dáil Deputy and a businessman. He was Minister for Public Enterprise at the time of certain events set out below in connection with the second GSM Mobile Telephone Licence. He resigned as Minister in circumstances of controversy, unconnected with this action. It is right to add that he has been re-elected to Dáil Eireann at every subsequent election and clearly enjoys the confidence of the voters of North Tipperary.

13. The third-named defendant is a limited liability company incorporated in Ireland and was at all relevant times the holding company for Esat Telecom Holdings Ltd.

14. The fourth-named defendant Mr. Denis O’Brien is one of the best known and wealthiest businessmen in the State and a major figure even by international standards. At all times relevant to this application he was the principal share holder in a company called Communicorp Group Limited. Through that vehicle he held an interest of between 37.5% and 40% in Esat Digifone, a consortium formed for the purpose of submitting a bid for the mobile phone licence mentioned above. This consortium consisted of Esat Telecom Holdings Ltd., Telenor Invest AS and IIU Nominees Ltd.

15. Accordingly, it can be seen that the plaintiffs in the present proceedings make allegations of fraud, misfeasance, deceit and other wrongs against a government ministry, the State itself, the Attorney General, a former Minister and current member of Dáil Eireann, a Company and an immensely wealthy and prominent businessman. It is most important, in the interest of justice, to emphasise what to most readers will be known already: the allegations of actual corruption are made against Mr. O’Brien and Mr. Lowry T.D.: the liability of the other parties for their alleged actions is said to be vicarious or representative.

16. Thus, the State is said to be liable for the wrongful acts of the former Minister and the Attorney General is sued in a representative capacity.

17. None of these allegations has as yet been proved in any legal forum. The plaintiffs intend to attempt to do so in these proceedings and they have, they say, gathered a great deal of information to this end from the evidence heard in public at the Moriarty Tribunal. The State defendants, however, say that the plaintiffs have delayed too long while doing this and that the proceedings should now be struck out and not permitted to proceed to hearing.

Background.
18. The essential background to this case is that on the 2nd March, 1995 the Minister for Public Enterprise, then Mr. Lowry, announced a bidding process for the award of the second GSM Mobile Phone Licence. Mr. O’Brien’s company, Esat Digifone, was the successful candidate in this bidding process and was awarded the licence on the 16th May, 1996. Mr. O’Brien was then the chairman of Esat. The first-named plaintiffs in each case were amongst the unsuccessful applicants for the licence.

19. The licence was correctly regarded as a thing of very great value and indeed it wholly transformed the fortunes of the successful applicant and some of those associated with it. The Company which held the licence was, a relatively short time later, sold on for the enormous sum of €2.3bn . The process of application or tender for the licence was an immensely complicated one and one which was extremely expensive to participate in.

20. This process involved the creation, on the 6th March, 1995, within the Public Service, of the “GSM Project Group” which drew up guidelines for dealing with the tenderers during the course of the tender process, and which then conducted these dealings. This Group was also to evaluate the applications which had been elicited by a process of public advertisement. The stated object in creating this Group was to ensure that the evaluation of tenders and the award of the licence would be carried out by a body “impermeable to political influence”. The Group was created under terms of strict confidentiality. A protocol had been adopted to ensure that contact between the decision makers and interested parties occurred only in a formally controlled way. Applicants were to be judged by reference to the rules and evaluation criteria approved by the government and the evaluation was to proceed strictly in accordance with an Evaluation Model and a Weighting Matrix, the latter to reflect the descending order of importance of the criteria to be applied, which were to be adopted prior to the closing date for applications.

21. Comcast was party to a joint venture agreement entered into with Radio Telifís Eireann and with Bord na Mona and submitted a tender for the licence on the 4th day of August, 1995 under the name “The Cellstar Group”.

The plaintiff’s complaint.
22. The plaintiffs say the process very briefly outlined above for the evaluation of applicants and the award of a licence, was corrupted by Mr. Lowry T.D. in order to ensure the award of the licence to Mr. O’Brien’s consortium. It is further alleged that this was done by Mr. Lowry T.D. because he had himself been corrupted by Mr. O’Brien by the promise or expectation of payments to him of money or moneys worth. It is a complicating factor in the case that the payments or benefits said to have been acquired by Mr. Lowry T.D. were allegedly acquired largely after the award of the licence.

The present application.
23. What is before the Court at present is a notice of motion on behalf of the Minister for Public Enterprise, Ireland and the Attorney General (“the State defendants”) to dismiss Comcast’s proceedings as against those defendants. The substantive reliefs are set out in para. 1 and 2 of a notice of motion of the 26th May, 2006 as follows:

(1) An Order pursuant to the inherent jurisdiction of this honourable court, dismissing the within proceedings as against the first, fifth and sixth named defendants for delay and/or want of prosecution.

(2) An Order, pursuant to the inherent jurisdiction of this honourable court, dismissing the within proceedings as against the first, fifth and sixth named defendants in the interests of justice.”

24. The State defendants mentioned were successful in this motion in the High Court and the action against them was dismissed by order of that Court (Gilligan J.) in a judgment dated the 13th June, 2007. This is the plaintiffs’ appeal against that judgment and the order to which it gave rise. The appeal was hard fought and its hearing occupied three days, the 10th, 11th and 12th of July, 2012.

Overview.
25. The State defendants say that the plaintiffs had, by May 2006, simply delayed too long, so long that their claim as a whole should be dismissed by the Court for delay and want of prosecution. This is why they issued the motion of the 22nd May, 2006. They alleged, in particular, that the plaintiffs have delayed too long in delivering their Statement of Claim (which was in fact delivered on the 3rd June, 2005 about 3 years after the plenary summons was served). They say that the plaintiffs have grossly exceeded the ordinary twenty-one day time limit for delivering the statement of claim. The proceedings should be dismissed on that account and “in the interests of justice”.

26. The plaintiffs do not deny delay. But they say that, in the unique circumstances of the case, this delay on their part is excusable. They point, in the first instance, to the unique circumstances of the case: they are alleging fraud, deceit and corruption against the State itself, a government department, the individual Minister who then headed the department and who remains a member of Dáil Eireann and against the wealthiest businessman in Ireland, a major figure even on the international stage. They are alleging that the corruption took the form of promised and actual covert payments, bribes in a word, from the businessman or vehicles controlled by him to the Minister or in his interests. Such things, if true, would be utterly disgraceful, destructive of the reputation of both the briber and the person bribed. They say that in consideration of these inducements the Minister cynically corrupted the evaluation and award scheme, designed to be “impermeable” to political influence and changed its rules and procedures so as to ensure that the businessman’s Company was awarded the hugely valuable licence. Corruption of the sort alleged, if proved, is both a civil wrong and a criminal offence, not to mention a commercial and political disgrace of the highest order. It would disgrace the Nation and the State. It is, therefore, the plaintiffs claim, most unlikely to be committed openly, obviously or in a way that is easy to discover or prove. On the contrary, they claim, it was assiduously concealed and disguised by various stratagems. This makes it impossible, they say, to formulate a claim within the time limited by the Rules of Court. The process of investigation needed to establish top-level corruption will, alone, far exceed that time. If the ordinary limits of time were applied to such a case, they argue, it could never be pursued at all.

27. They point out that they were compelled to issue the plenary summons in this case to avoid their action being defeated by the statute of limitations which limited a period of six years from the events complained of, from the issue of the summons. The plaintiffs also agree that, having issued the summons, they omitted to serve it for almost the maximum permitted period of one year because their investigations were continuing.

28. The plaintiffs deny any prejudice to the defendants which would require the proceedings to be struck out in the interests of justice. The learned trial judge found no specific prejudice.

The Tribunal.
29. The principal point made by the plaintiffs, however, is that at the end of 1997 the Taoiseach of the day, Mr. Bertie Ahern, by Instrument under his hand appointed a Tribunal of Inquiry, whose sole member was the Honourable Mr. Justice Moriarty, to inquire, inter alia, into payments made to Mr. Michael Lowry. The making of these payments, (as well as other things), had been described as a “definite matter of urgent public importance” in a resolution passed shortly beforehand by Dáil Eireann, mandating the establishment of the Tribunal.

30. The plaintiffs assert that at all times from the announcement of the award of the licence they had misgivings about the integrity of the process but lacked evidence to prove the bribery and corruption which they say had occurred, precisely because all evidence had been sedulously concealed.

31. The plaintiffs do not contend that they are entitled to rely on the findings of the Moriarty Tribunal to establish in evidence, even on a prima facie basis, the facts which the Tribunal found. But they say they are entitled to use the evidence heard by the Tribunal, in public, over a period of years to assist them in producing proof of what they assert happened in relation to payments or other benefits conferred on Mr. Lowry, in relation to attempts to make other payments or benefits to him, and to action taken by him to corrupt the process leading to the award of the second GSM licence. They point out that evidence of this kind was heard on many dates over the years between 2001 and 2010, inclusive. They say that they were entitled to await the development of this evidence, or sufficient of it to enable them to plead their claim. They rely heavily on the momentous fact that Dáil Eireann, and the Executive power of the State, thought it necessary to ascertain the facts about payments to Mr. Lowry and that they are entitled to rely on the evidence developed, in public, using compulsory processes not available to private interests, before this solemn tribunal.

32. To this the State defendants say that the plaintiffs have no such entitlement. They say that the Tribunal was established in the public interest and for the public good. There is no entitlement to use its processes to support a private action brought for private financial gain, and therefore were not entitled to wait for those processes to produce evidence. They agree that the plaintiffs are entitled to litigate but they say that right is confined to those who litigate in accordance with the Rules of Court and in a timely manner. The plaintiffs have not done this. The State defendants emphasise that it is now some sixteen years since the award of the relevant licence and claim that it may be up to twenty years from that award before the litigation could come on for hearing. This is wrong, they claim; it deprives them of the right to fair litigation and to a fair trial. On its being raised, - they conceded that, in other classes of litigation, the State itself has asserted a right to proceed after as long a period, or even after periods more than twice as long, but they say that this should not be held against the State in the present application because the State defendants here cannot be expected to stand over every action the State has been engaged in.

33. The State defendants also claim that the plaintiffs had available to them various procedural options which might have enabled them to plead their case without awaiting the evidence heard before the Tribunal. It is said that they could have “sought pre-Statement of Claim Discovery of documents”; secondly, they could have applied to the Court to stay their own proceedings, it is said.

34. It appears to me that these submissions are wholly lacking in reality. The corruption alleged in this case was covert, devious and concealed. Foreign entities were, it is said, used to channel money to Mr. Lowry. The main relevant information developed at the Moriarty Tribunal over a long period of years related to a money trail. The evidence related to a series of transactions which, in the view of the Moriarty Tribunal, demonstrated monies being paid to Mr. Lowry. As Clarke J. says in his judgment about to be delivered, “a significant degree of forensic disclosure from financial institutions and others with the benefit of the significant powers of compellability which are available to a Tribunal of Inquiry” was required to establish these transactions.

35. In my view it is ludicrous to think that the persons and entities who went to great trouble to hide what was allegedly done would willingly supply evidence of it on discovery or otherwise. Accordingly, I agree with Clarke J. that “it was not unreasonable for Persona and Comcast to conclude that discovery was unlikely to produce the necessary detail and that it was much more likely that any such detail would, if it existed, become available through the Tribunal”.

The remit of the Tribunal.
36. The tribunal whose processes are relied upon by the plaintiffs was established by the Tribunals of Inquiry (Evidence) Acts 1921 and 1979 (No. 2) Order 1997. This Order was made under the hand and seal of the Taoiseach on the 26th September, 1997.

37. The Order first recited a resolution which was passed by Dáil Eireann on the 11th September, 1997 and by Seanad Eireann on the 18th September, 1997. Insofar as relevant this resolution said:

“Bearing in mind serious public concern arising from the Report of the Tribunal of Inquiry (Dunnes Payments) which established that irregular payments were made to and benefits conferred on certain persons who were members of the Houses of the Oireachtas between 1 January 1986 and 31 December 1996…

Resolves that it expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act 1921 as adapted by or under subsequent enactments… to inquire urgently into and to report to the clerk of the Dáil and make such findings and recommendations as it sees fit in relation to the following definite matters of urgent public importance: …

(e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Lowry or due by any Company with which he was associated or due by any connection to a connected person of Mr. Michael Lowry… during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential the discharge of such office.

(f) The source of any monies held in [a number of named banks] in accounts for the benefit or in the name of Mr. Lowry or any other person who holds or has held a ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Lowry

(g) Whether Mr. Lowry did any act or made any decision in the course of any ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who is the source of any money referred to in paragraph (f) or any other person in return for such payments being made or procured or directed any other person to do such act or make such decision”.

38. It is thus established that, in the calendar year following that in which the second GSM licence was awarded, the Houses of the Oireachtas, and the Executive, considered it appropriate to establish a Tribunal of Inquiry to look into payments to Mr. Lowry and whether these payments were made for the purpose of, or actually did, influence him in the exercise of his public functions. The Terms of Reference themselves did not expressly mention the procedures leading up to the award of the second GSM licence, but they are plainly capable of extending to those matters. The questions set out as part of the Tribunal’s remit were declared to be matters of urgent public importance.

Relevance of Tribunal to this litigation.
39. Consequent on the passing of the Resolutions referred to above in the Houses of the Oireachtas, and on the establishment of the Tribunal by Instrument of the Taoiseach, it was clear in September, 1997 that the question of payments to Mr. Lowry, the effect they had, and the purpose for which they were made, was going to be investigated by a public statutory Tribunal of Inquiry. This is the most radical, thorough going, and fully empowered mechanism of investigation available to the State.

The Plaintiffs’ thinking.
40. According to the affidavit of Damien Young, a solicitor in the firm acting for the plaintiffs, at the time of the issuing of the plenary summons his clients believed that the award of the second GSM licence to Esat Telecommunications Ltd. was wrongful. However, he says, “the plaintiffs 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 the Plaintiffs of a particularised “Statement of Claim”. Mr. Young goes on to say that the Statement of Claim was eventually delivered, in June 2005 “in response to an application to strike out the plaintiffs proceedings brought by the fourth-named defendant (Mr. O’Brien).” Mr. Young says that the Plaintiffs wished to await the outcome of the investigation of the Moriarty Tribunal but they were constrained to file the Statement of Claim because of the making of an order that the proceedings would be struck out if one were not filed within four weeks. This occurred more than five years before the conclusion of the Tribunal.

41. Mr. Young repeats that the Statement of Claim made it clear that the plaintiffs were unable fully to particularise the extent of the wrongdoing of the Minister, pending the conclusion of the investigations of the Moriarty Tribunal. He goes on to make the case that the:

“delay is excusable by reference to the fact that the subject matter of the proceedings is also the subject matter of continued investigation by the Moriarty Tribunal. The complexity of the subject matter of these proceedings is evident from the time taken by the Moriarty Tribunal in investigating this matter. The plaintiffs cannot have been expected to be aware of all the details of the improper payments and conduct which [the plaintiffs] believed to have resulted in the award of the second mobile phone licence to [Esat]. In the circumstances it was reasonable for the plaintiffs to await the information provided by way of public hearings at the Moriarty Tribunal prior to delivery of the Statement of Claim”.

The Tribunal’s focus.
42. In fact, as outlined at the hearing of this appeal, it was in May 2001 that the Tribunal decided specifically to investigate the circumstances of the awarding of the second mobile phone licence. This was highly significant from the plaintiffs’ point of view because they had to issue their proceedings very shortly in order to avoid being defeated by the Statute of Limitations. The Tribunal’s decision seems to have followed the publication of an article by Mr. Matt Cooper in March of 2001. This article discussed a payment of $50,000 made by Telenor, part of the successful Consortium in the license application, to the Fine Gael party (as opposed to Mr. Lowry personally). The significance of this subject in the Tribunal’s decision to investigate the second GSM licence transaction is set out at Chapter 60 of the Tribunal’s Report. Par. 60.01 records:

“What led the Tribunal to investigate the decision made on the 25th October, 1995, that Esat Digifone had won the comparative valuation to select a second GSM operator, and the subsequent grant of the licence to Esat Digifone on 16th May, 1996, was the evidence of the commencement, shortly thereafter, of the process whereby payments were made by Mr. Denis O’Brien to Mr. Michael Lowry in clandestine circumstances. The steps taken to effect the initial payment arose less than seven weeks after the licence was granted, and the payment was made out of the proceeds of the very first tranche of funds available to Mr. O’Brien, after he had successfully completed a placement on the U.S. market, to finance his participation in Esat Digifone. That payment was routed through a series of off shore bank accounts, commencing in the Isle of Man, moving to Jersey and terminating back in the Isle of Man, in an account in the name of Mr. Lowry, but was reversed on the appointment of the McCracken Tribunal”.

43. It thus appears that the remit of the Tribunal from September 1997 was broad enough to include the events leading to the award of the second GSM licence, and any payments made in that connection. In May 2001, moreover, it became clear that the Tribunal intended to investigate that specific matter and it proceeded to do so (though not of course continuously) on various dates over the next nine years. The effect of this on the position of the plaintiffs, who are alleging covert payments to Mr. Lowry leading to a corrupt granting of the second GSM licence, is at the nub of these proceedings.

Did the defendants know?
44. There was uncontradicted evidence on this application that the plaintiffs, personally or by lawyers acting for them, attended at virtually all relevant sittings of the Tribunal over a period of years. It was also asserted that at one of these sittings Mr. Mathew Shaw, a State Solicitor, met Mr. Gerald Moloney, a solicitor acting for the plaintiffs, and asked him whether he would soon be delivering his Statement of Claim. Mr. Moloney replied that they would be awaiting the evidence heard at the Tribunal before doing so. On the hearing of this appeal it was said on the part of the State that they were not in a position to deny this conversation but, as a matter of law, the State take the view that the nature of a Tribunal of Inquiry is so different to that of civil proceedings that there is no relevance at all to the latter in the fact that a tribunal may be investigating the very same matters which are the basis of the civil proceedings. It is to this topic that I will shortly turn.

45. I believe it is abundantly clear from the evidence in this case that the State defendants were affirmatively aware, at all material times, that the plaintiffs intended to await the evidence at the Tribunal before delivering a Statement of Claim. The State has not denied this. The plaintiffs said precisely this to the State solicitor who asked about the Statement of Claim. There is no other conceivable basis for the State’s action in cross-examining a Persona representative who gave evidence at the Tribunal along the lines that his company was using the Tribunal as a “stalking horse” for these proceedings.

46. Since the State was in fact affirmatively aware of what the plaintiffs were doing, I do not think it necessary to discuss whether (as the State contends) the plaintiffs should have put their position in writing to the State. That question might have been central had the conversation between Mr. Moloney and Mr. Shaw been denied, but it is not denied or glossed. Nor did Mr. Shaw say that he placed no significance on the statement of Mr. Moloney, or that the conversation was of a casual nature. In my view it cannot be gainsaid that the State knew exactly what was going on at all material times. Since that is so I do not consider that the contention that the plaintiffs should have informed the State defendants (of what they knew anyway) in some more formal fashion has any merit or relevance.

Nature of the Civil Proceedings.
47. In the course of argument on this appeal Counsel for the State defendants said that the public interest in establishing whether or not payments had been made to Mr. Lowry and whether he had taken any improper action on foot of them, was met by establishing Tribunal of Inquiry. This body was acting in the public interest. He did not say whether the State accepted the findings of the Tribunal, but he did not contradict them. The present proceedings, in contrast to the Tribunal, were (he said) entirely private proceedings aimed at securing a private benefit. Accordingly there is no entitlement to use the evidence given at the Tribunal in the civil action: they are quite different procedures in their nature, wholly unconnected with each other in nature and purpose. There is therefore no entitlement to await this evidence before furnishing a Statement of Claim, so the delay caused by doing so is not excusable.

48. I do not consider that so rigid a distinction can be drawn between a public statutory procedure, here a Tribunal of Inquiry, on the one hand, and a civil action on the other hand. This topic was to some extent considered in this Court in the case of Grant v. Roche Products (Ireland) Ltd. [2008] 4 IR 679. There, the plaintiff had brought a fatal injuries action claiming that his son had committed suicide following his taking of a prescription drug marketed by the defendants and prescribed for him by a consultant Dermatologist. He claimed the drug had caused his son to become extremely depressed and withdrawn as a result of which he committed suicide. He said that depression was a known side defect of the drug.

49. The defendants brought a motion to strike out the proceedings. They said they had already offered to pay the plaintiff the full value of the action, thereby satisfying his claim for damages. In those circumstances, they claimed, the continued prosecution of the action was an abuse of process. However, the plaintiff refused their offer because it offered only financial compensation: the defendants accepted no liability for the death of the plaintiff’s son.

50. In this Court, it was held that the plaintiff’s action fell to be approached in the context of the Constitution. Reference was made to Article 40.3 and to the State’s undertaking “in its laws to respect and by its laws [to] protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”.

51. The Court went on to hold that the fatal injuries action was not merely a device for obtaining a payment but was a method whereby the right to life of the deceased could be vindicated. It was, in fact, “the only legal step capable of providing vindication for an alleged injustice”. This conclusion was reached in the light of both the Irish and English texts of the Constitution, considered at paragraphs 69ff of the judgment in the Grant case.

52. Of relevance to the present case is what is said at para. 77 of the Report in Grant:

“I wish specifically to reject a central proposition upon which the Roche defendants relied, that the vindication of personal rights is a matter only for the ‘criminal or regulatory’ law and not civil law. This highly artificial distinction has no basis in the Constitution or in the law itself. Above all, it does not conduce to justice which, by Article 34.1 of the Constitution is what the Courts are to administer. On the contrary, it has been recognised at least since Meskell v. CIE [1973] IR 121, at 132/3, that constitutional rights are capable of enforcement by action ‘even though such action may not fit into any of the ordinary forms of action in either common law or equity’, thereby plainly and necessarily establishing that the ordinary forms of action may be used to enforce such rights where possible. Still more explicit than the dictum of Walsh J. quoted above is that of Henchy J. in Hanrahan v. Merk Sharpe and Dohme (Ireland) Ltd. [1988] ILRM 629 when he said at 635/6:

‘I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions as to the personal rights and the property rights of the plaintiffs as citizens’.

This is an absolutely express statement of the role of the law of tort in implementing the State’s duties under Article 40.3 and the Personal Rights Articles of the Constitution”.

53. I would also refer to the other dicta and the authorities cited on this point in Roche without thinking it necessary to set them out here.

54. I would, accordingly, reject the contention made towards the beginning of the State’s answer in the oral argument of this appeal that it is inadmissible for the plaintiffs to seek to derive benefit from the proceedings of the Tribunal because the Tribunal is a body established in the public interest and the present proceedings are purely private proceedings directed at ensuring a private benefit. I am indeed surprised that this argument was made having regard to the relatively recent decision of this Court in Grant. The law of tort and the whole area of civil law is available for the vindication of constitutional rights, including property rights, where appropriate. The fact that these forms of action are available in the law of the State is a discharge by the State of the obligations set out in Article 40.3 of the Constitution. If they were not so available, the State would have to make some other mechanism available to vindicate those rights. Manifestly, if the plaintiff’s allegations are correct there can be little doubt that they have been the victims of an “injustice”. Their capacity to bring a civil action in that regard is directed at the “vindication” of their rights in light of that injustice.

Primor v. Stokes Kennedy Crowley.
55. This Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 set out an authoritative test for approaching a defendant’s motion for dismissal for want of prosecution, and I intend to follow it here. The Court summarised the relevant law as follows:

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;

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;

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;

56. This overall approach has been endorsed in such subsequent cases as Stephens v. Flynn Ltd. [2005] IEHC 148 and Desmond v. MGN Ltd. [2008] IESC 56.

57. If a defendant cannot show that the delay was both inordinate and inexcusable, then “there are no real grounds for dismissing the proceedings” (Primor at 468). In Primor, the Court found that the plaintiff’s delay was inexcusable, in part because the delay was caused by mismanagement. (Ibid at 477). The Court in Primor also held that the fact that the plaintiff’s case was very complicated was not itself enough to excuse the delay. (Ibid at 478). Here, the delay was not the result of mismanagement or complexity of material; instead, the plaintiffs delayed in order to hear the evidence publicly elicited by special statutory powers at the Moriarty Tribunal, which evidence they needed in order to particularise the details of their allegations, because, they say, many of the key facts of the case were deliberately and artfully concealed. Furthermore, in regard to a subsequent two year delay in Primor, Hamilton, C.J. held that “there is more basis for excusing the two-year delay in the preparation of the affidavit of discovery than for the two-year delay which rose arose at an earlier stage in the preparation of the reply to notice for particulars” because the preparation of the affidavit was a “mammoth task” involving well over 200,000 documents . (Ibid at 479). The plaintiffs’ situation here is much closer to this more excusable delay because they were waiting for evidence to emerge at the Moriarty Tribunal, which were delayed because of the unexpected breadth of the inquiry, the vast number of documents considered, the viva voce evidence of many witnesses, and legal action by various parties aimed at limiting the scope of the Tribunal’s inquiry.

58. Hamilton C.J. also pointed to the High Court decision in the associated case of Primor plc v. Oliver Freeney & Co. which held that the plaintiffs delay was excusable due to the length of the case as well as the “.enormous task which faced the plaintiff and to the number and complexity of the documents involved.” (Ibid at 484). But that will not always, i.e. of itself, be an excusing factor, and was not so in Primor. Here, however, not only was the task of gathering evidence enormous and complex, but those performing it were wholly outside the plaintiffs’ control, so there was nothing the plaintiffs could have done to speed the process. As this court has said previously, it is proper that regard should always be had to the Rules of Court but it must be remembered that the rules are there to help in the administration of justice, and not as an end in themselves. (Ibid at 516).

59. In the two associated (and jointly reported) Primor cases, the High Court had in each case ruled against the motion to dismiss and permitted the litigation to proceed. These decisions were, on the facts of that case, overturned by the Supreme Court for reasons which are pithily summarised in the judgment of O’Flaherty J., at p.516:

“The defendants are simply not able to make their defence for the diverse reasons already referred to but, especially, because of the fact that so many essential witnesses are either dead or beyond the reach of the courts”.

60. On the hearing of this appeal there was no suggestion that any important witness was similarly unavailable. Like all these cases, Primor turned on its own facts, as this case must. Apart from the fact that there was no contention here about prejudice due to dead or otherwise unavailable witnesses, there are the following obvious points of distinction with Primor:

(a) Primor was a negligence action, albeit a complex one; this is an action for fraud, deceit, misfeasance in public office and corruption. Accordingly, the plaintiffs face problems much greater than those arising simply from complexity and have to deal, allegedly, with concealment of evidence and deliberate falsehoods.

(b) Although a considerable time elapsed between the service of the plenary summons in 2002 and the delivery of the Statement of Claim in 2005, during the whole of that period, the question of alleged payments to Mr. Lowry in connection with the second GSM licence was actively and specifically under investigation by the Moriarty Tribunal. All known parties with relevant evidence to give were examined in that forum and, more specifically, all known State employees with relevant evidence made statements for the purposes of the Inquiry and cooperated with the State’s own legal advisers. Most or all of these witnesses were cross-examined. Accordingly, all known relevant witnesses in relation to the State’s dealing with the second GSM licence have been thoroughly questioned both in public and in private and their evidence and recollections preserved. On the hearing of this appeal this was not gainsaid.

(c) In all the circumstances, the plaintiffs’ case cannot be regarded either as implausible or as impossible to defend due to lost evidence or witnesses.

61. In Hogan v. Jones [1994] 1 ILRM 512, Murphy J. had this to say at p.158 of the Report:

“The draconian penalty of dismissing proceedings as against a particular defendant in circumstances which wholly defeat that claim of the plaintiff is not an order which is made with a view to punishing a party for his dilatoriness in proceeding with the action or for his failure to meet some artificial regime. The order is made only when it is necessary to protect the legitimate interests of the party sued and in particular his constitutional right to a trial in accordance with fair procedures”.

62. In this case, too, the remedy of dismissing the plaintiffs’ claims would indeed be a “draconian penalty”. It is of course true to say that there are many cases where delay of the length found here would be wholly inordinate and there will be some of those cases where it is inexcusable as well. But the unique nature of this case, and the unique difficulties of each plaintiff in pleading and proving what it says, must also be considered. To impose on a case of such complexity, with the subject matter allegedly characterised by concealment and deceit, the same twenty-one day period for delivery of a Statement of Claim as applies to a perfectly simple running down action, or any limit of that order, would indeed be to impose an “artificial regime”, and in my opinion an unjust one. To these general observations must be added the fact that the authorities of the State have considered that the question of payments to Mr. Lowry, if any were made, and the question of why they were made, and the question of what, if anything, was done in consequence of their being made, merited a public inquiry. This inquiry was of such complexity that (together with other topics) it occupied in total more than fourteen years.

63. In the absolutely unique circumstances of this case I consider that the plaintiffs were entitled to hear and consider the evidence which was led before the Tribunal prior to pleading their case. It must be emphasised that, at the start of the Tribunal’s deliberations, it was officially estimated that its work would take a year. It is not the doing of the plaintiffs that that estimate was exceeded by so large a factor. The State defendants have not argued this period of time was excessive: they argue that the plaintiffs were not entitled to await the evidence developed at the tribunal at all.

64. What were the plaintiffs to do except await the evidence at the Tribunal? The plaintiff companies knew that there would be evidence about payments to Mr. Lowry in the precise context which was relevant to their case, heard by the Tribunal, evidence produced in the main by compulsory processes unavailable to them. To proceed before that evidence had been developed was to risk the dismissal of their actions for lack of evidence, or for delay in furnishing particulars, as in Primor. If this had happened, and the Tribunal had later reported as it actually did, the law itself would, in my view, have been brought into disrepute.

65. I find that the plaintiffs’ delay here is manifestly distinguishable from that in Primor, and that the plaintiffs’ delay was excusable due to their unique situation and lack of other legal remedies. Because the plaintiffs delay was excusable, there are (following Primor) no grounds for dismissing the proceedings, so it is not necessary to examine the “balance of justice” arguments advanced.

Comparisons and the interests of Justice.
66. Counsel for the State cited a passage from my judgment in Kennedy v. Director of Public Prosecutions (Supreme Court, unreported, 7 June, 2012). It was this:

“A Tribunal of Inquiry is not a method of gathering evidence for a criminal prosecution and should not be regarded as such. On the contrary, it is a special form of inquiry in which the rights of citizens are very gravely abrogated and is purely for the purpose of allowing a non-binding opinion to be expressed on ‘definite matters of urgent public importance’.”

67. The passage relied on was a comment on a passage in the judgment of the learned trial judge in Kennedy, in which he had stated that even if the delay in that case had been both inordinate and inexcusable he would still have been satisfied “that the balance of justice would demand that these proceedings be allowed to take place”. This was because, he said:

“The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The State has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials.”

68. I adhere to what I said in Kennedy and I am quite content to repeat it here. It would be quite wrong to establish a Tribunal of Inquiry as a means of obtaining evidence for criminal proceedings, or for civil proceedings. But that is not what occurred in this case. The Oireachtas and the Executive established a Tribunal of Inquiry because it considered that certain matters, including payments to Mr. Lowry, required to be investigated as “a definite matter of urgent public importance”. It was not suggested, and would have been irrational to suggest, that the Tribunal of Inquiry was established for the purpose of finding evidence for proceedings, civil or criminal. But once the Tribunal was established, and in particular once it decided to investigate the competition for the second mobile telephone licence, it became clear that the Tribunal was going to hear evidence which was of great relevance to the question of whether Mr. Lowry had been bribed in connection with that competition, and what if anything he did on foot of any payments. This was, of course, the nub of the civil action.

69. The position seems to me analogous to that which is exists where a plaintiff is taking an action for damages for personal injuries, or a person’s dependence on taking a fatal injuries action, in respect of the consequences of a traffic accident or an industrial accident. If there is reason to believe that the accident has caused death or serious injuries there may very well be a prosecution for alleged breaches of the Road Traffic Acts or the Health and Safety at Work Acts. Such prosecutions are not instituted by the public authorities for the purpose of producing evidence for a civil action. But it is extremely common for the Solicitor acting for the plaintiff in the civil proceedings to attend the criminal trial with a “watching brief” to see what happens and in particular to see what evidence is available that might assist him in the civil action. There is nothing wrong in his doing so and it might, indeed, in certain circumstances be said that it would be negligent not to do so. Even if there is no prosecution the fruit of a garda investigation into a traffic accident can be made available to a plaintiff in civil proceedings in the form of a “garda abstract”.

70. In the examples I have given, it is usual that a criminal prosecution (especially a summary prosecution) would be concluded in a relatively short period, much shorter than it would normally take to have a trial of a civil action arising from the same facts. The real difference between the examples I have given and the present case is that the Tribunal of Inquiry took an extraordinary period of time to complete its work. This period of time was some thirteen or fourteen times longer than had originally been officially estimated. But, as I have already said, the State did not argue on the hearing of this appeal that the Tribunal had taken too long, or that the length of the Tribunal’s proceedings disentitled the plaintiffs’ from relying on the evidence generated: instead they made the point that the plaintiffs were not entitled to await the hearing of evidence at the Tribunal at all.

71. It seems to me to follow from the foregoing that the passage cited from the judgment in Kennedy is simply irrelevant to the present circumstances. Indeed, Kennedy and Cosgrave were cases where the State itself is relying, in criminal prosecutions, on evidence which first emerged at a Tribunal of Inquiry. There does not seem to be any reason why they should not do this.

72. Kennedy and the associated case of Cosgrave v. D.P.P. (Supreme Court unreported 26 April, 2012) were cases where it was proposed to put elected officials, such as Mr. Cosgrave, on trial for taking bribes, and to try Mr. Kennedy for allegedly providing the money to bribe them. These proposed trials were totally dependent on the evidence of a self-confessed guilty party, Mr. Frank Dunlop, who was alleged to have passed on the bribes in particular contexts. The offences alleged were said to have occurred between 1992 and 1998. Mr. Dunlop had told the Flood Tribunal, a close contemporary of the Moriarty Tribunal, that he had made these payments by way of bribes. This statement was made in October, 2000. However, Mr. Cosgrave was not charged until October 2010, and Mr. Kennedy was charged in the same month. The criminal proceedings were thus initiated between twelve and eighteen years after the events complained of and the trials have yet to take place.

73. The delay in charging these defendants related to the State’s desire that Mr. Dunlop would himself be prosecuted before being produced as a State witness, and that he would give evidence in other State proceedings. The delay which this involved, which arose directly out of his evidence to the Flood Tribunal, was not considered to preclude the proceedings against Messrs. Cosgrave and Kennedy when these were eventually brought forward, after a delay similar to but longer than that found in the present case.

74. Although the State relied on the passage cited above from my (dissenting) judgment in Kennedy, it showed no awareness at all of the general context of Kennedy and Cosgrave nor of the myriad other “delay” cases in which the State has been involved for upwards of a decade now, roughly from JO’C v. D.P.P [2000] 3 IR 478 onwards. In those cases, unlike the present one, the State has typically been involved as the prosecutor or moving party and in that capacity it has consistently averred that trials of disputed allegations, often of child sexual abuse, can fairly be had after periods much longer than what is in question in this case, and including periods in excess of forty years. In the week in which this judgment was largely drafted, the Court heard an appeal by the State against an order restraining prosecutions of allegations relating to a period between forty-seven and thirty-nine years previously.

75. When asked about this apparent inconsistency of approach Counsel for the State responded, a little impatiently, that he could not be expected to stand over the conduct of every single delay case. This is undoubtedly true and it would have been most unfair to ask him to do so. But he was not, of course, asked to do so. He was asked to address the existence of separate, different and inconsistent State attitudes in a large category of cases over a period of many years, where the State was the moving party, by contrast with that adopted in the present case where the State is amongst the defendants.

76. In the great bulk of the criminal cases in question, there is little or (more usually) nothing at all in the way of documentary or forensic evidence with which the unaided memories of witnesses can be controlled or compared. This case, on the other hand, is by comparison a very highly documented case. It is not to be expected that persons who give or receive bribes will knowingly permit a documentary record of bribes described as such to come into being or to continue to exist. But the processes leading to the evaluation of the tenders for the second mobile phone licence, and the award of that licence, are highly documented, as the report of the Moriarty Tribunal demonstrates. So, it appears, is the money trail which that Tribunal exposed.

77. The fact is that the State has consistently argued, over a period of many years, that a trial of gravely serious allegations can fairly be had after periods which far exceed what is in question in this case. The allegations in such cases will have appalling consequences for the person against whom they are made if they are found to be true, usually including prolonged imprisonment, financial ruin, total destruction of reputation, and familial and professional disintegration. This record itself makes the State defendants’ protestations of injustice in this case ring hollow. The allegations of prejudice are completely general in nature and the learned trial judge expressly held that there was no specific prejudice.

78. In my view the State defendants in the present case have entirely failed to engage with the extensive jurisprudence on prejudice to fair litigation arising from delay in both civil and criminal cases, and have simply ignored the State’s own repeated contentions that, in the great majority of cases at least, a properly conducted trial can obviate any prejudice which might arise from lapse of time. I do not consider that they have demonstrated any prejudice which would require the Court to strike out these proceedings in limine.

79. It is most unsatisfactory that the State has, in criminal proceedings, asserted a right to proceed after periods of delay which dwarf those in question in this case, while maintaining that the latter periods absolutely preclude a fair trial for the State defendants. Counsel for the State did not seem conscious of any inconsistency in submitting, as they have in this case, that the periods of delay here are such that, in themselves, they demonstrate that there cannot be a fair trial of the allegations. They say this on the assumption that the trial would take place about twenty years after the award of the second mobile telephone licence.

80. The law officers of the State, the Attorney General and the Director of the Public Prosecutions are of course independent in the discharge of their functions. But if our jurisprudence is, even remotely, to approach coherence there must be some consistency of approach between the different arms of the State. The present case is a complex one and requires to be proved to the civil standard of proof. But it is also a case with a very great volume of relevant documentation, that is it is a case which does not depend solely on the memories of witnesses. Equally, it is a case which is not afflicted by the unavailability of witnesses due to death or departure, as Primor was. I do not consider that the fact that a criminal case requires to be proved beyond reasonable doubt is capable of explaining the inconsistent approaches which this case reveals.

81. It reflects no credit on our polity that the State has, within the same very short period of time, argued that the lapse of time between 1995 and the present wholly precludes the prospect of a fair trial of the allegations made against the State defendants. But within a few weeks advancing that contention the State, as noted above, sought to overturn the High Court judgment where a trial of a criminal allegation had been prohibited on the basis of a lapse of time of between thirty-nine and forty-seven years.

82. The question of alleged prejudicial delay is not, at least directly, relevant to the issue of excusability. But it might be argued that delay which causes prejudice cannot be excusable. The State have made no showing whatever of prejudice of any specific sort, though in other cases the State Authorities insist that a citizen trying to prevent the State from proceeding against him after forty years must do just that.

83. The State have in this case relied on a view of the effect of lapse of time on the potential for fair litigation which simply ignores the elaborate jurisprudence on the topic developed largely in response to the State’s own policy of litigating certain cases many years, sometimes decades after the cause of action has arisen. The State defendants’ failure to refer to, much less engage with, this line of authority implies an unspoken suggestion that the State should be treated differently to the individual citizens as litigant. I reject this as unstatable and inconsistent with the concept of legal equality.

84. It is true that the litigation of very old issues, civil or criminal, is usually permitted on the basis that the subject matter is exceptional. This, however, has not prevented such litigation becoming very common.

85. The subject matter of this litigation is truly exceptional, indeed unique. There has never been anything like it. If the plaintiffs have indeed been damnified by corruption at the highest levels of government and public administration, it is clearly a requirement of basic commutative justice that they be compensated - if they can make out their case. In doing this the findings of the Moriarty tribunal are inadmissible. But the evidence developed over nine years is not irrelevant and is publicly available to the plaintiffs as to any other citizen and to the State itself. The State does not appear to have rejected or criticised that evidence.

86. In my view a State which, having set up a public Tribunal to investigate payments to Mr. Lowry and what if anything he did in return, and having seen that Tribunal decide to investigate the specific issue of the second mobile telephone licence, cannot preclude a litigant from relying on the evidence the Tribunal had developed over many years. The position might be different if the plaintiffs case were manifestly implausible, but that has not been suggested in the present appeal. In my view the integrity and reputation of the Nation, as well as the rights of the plaintiffs require that this action be not terminated without a hearing, as the State propose.

87. I would allow the appeal and refuse the relief in both motions.