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:
McKechnie 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 213/07

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

Judgment of Mr. Justice William M. McKechnie delivered on the 17th day of October, 2012.

Background:
1. The award of the second GSM licence in this country, has given rise to a great deal of public and political debate ever since the announcement on the 25th October, 1995 that Esat Digifone had won the comparative evaluation to select the operator for such licence and the subsequent award of the licence to that company on the 16th May, 1996. That controversy, amongst others, lead to the establishment of the Moriarty Tribunal by act of an Taoiseach dated the 26th September, 1997, on which date, its general remit was to inquire into payment of monies to two individuals, one of whom was Mr. Michael Lowry, T.D.. In 2001 it particularised its purpose in this regard, describing its work as being, to determine whether the decisions above arrived at and the processes leading thereto were improperly influenced or impacted upon by the said Mr. Michael Lowry, T.D., the then Minister for Public Enterprise (now titled the Minister for Enterprise, Trade and Commerce). That Tribunal eventually reported in September, 2011 and arrived at conclusions which can only be described as breathtaking in their unequivocal condemnation of the conduct inter alia of the then Minister in the undertaking herein described.

2. The GSM, or Global Standard for Mobile Communications, is a pan-European cellular digital land based mobile communication system, which is further described in the annex to Council Recommendation 87/371/EEC of the 25th June, 1987. It was introduced in European countries to accommodate technological developments of the 1990s. GSM enabled connection across national borders between mobile phone users.

3. As can be imagined there was very considerable interest in the awarding of such licence, both from the public point of view and within the business and telecommunications sectors, it being the perceived wisdom that, the acquisition of such a priceless asset would afford the successful party an opportunity of commercial exploitation on truly an enormous scale. Such in fact came to pass in a short period of time with the sale of the successful company for well in excess of two billion euro. Hence the existence of intense public and media scrutiny in the contractual and competition setting, established by the State within which the process, leading to such decisions, was conducted.

4. That process was intended to be fair, impartial, and independent: it was designed to be free of political influence and to be conducted in strict confidentiality by a project group, composed of civil servants augmented by outside experts. Guidelines were drawn up, rules and evaluation criteria were approved by the government. Contact with interested parties was to be scrupulously controlled. If adhered to, all of these steps, and others, should have lead to a declaration of success which in accordance with best international standards, would have been immune even from controversy or questioning, let alone from a Tribunal of Inquiry or from judicial challenge.

5. The Moriarty Tribunal found that Mr. Michael Lowry, T.D. (or “the Minister”), exerted “insidious and pervasive influence” on the evaluative process thereby undermining its integrity and independence. Improper payments and other benefits were found to have been furnished by or on behalf of Mr. Denis O’Brien (see paragraphs 6 & 9 infra) to Mr. Michael Lowry, T.D. in relation to the conduct of the latter in securing the award of the GSM licence to Esat Digifone. Such conduct included: inappropriate interaction with Esat Digifone and Mr. O’Brien, specifically during sensitive stages; acquiring inside information which in turn he disclosed to Mr. O’Brien; making known his preference for awarding the licence to Esat Digifone, conveying his views on how to address Esat Digifone’s financial weakness by considering them curable by the granting of the licence; thereby rendering financial capability ultimately immaterial, contrary to Government policy; curtailing the work of the Project Group with decision-making power, by instead, centring such on a small subset of the group segregated from the expert consultants; and circumventing meaningful consideration by his Cabinet colleagues. This, it was found, resulted in the implementation of a process plagued with inadequacies and deficiencies, and in the creation instead of a distorted, renegade version of the originally planned evaluation process.

6. As above stated, the Minister issued an announcement on the 2nd March, 1995 of a bidding process for the selection and licensing of a second entrant to the GSM mobile phone market in Ireland. A number of consortia participated in the process by competing for the tender. Of these the following are relevant to the instant appeals:

      (i) the “Cellstar Group”, consisted of Comcast International Holdings Inc., Ganley International Limited, GCI Limited, and Mr. Declan Ganley who was a substantial shareholder in the companies last mentioned. In addition, two Irish semi-State companies were also parties to the joint venture, namely Radio Teilifís Éireann and Bord na Móna, neither of whom however have joined with their co-bidders in the proceedings above first and second mentioned, which collectively are referred to as the “Comcast proceedings”, or “Comcast” as appropriate;

      (ii) the “Persona” consortium consisted of Motorola, Sigma Wireless and Unisource Mobile as the three principals, with the Electricity Supply Board (ESB) holding the remaining substantial interest. The ESB did not join with the rest of the consortium in the third action above described, namely, the “Persona proceedings”, also referred to simply as “Persona” where appropriate;

      (iii) the “Esat Digifone” consortium was comprised of Esat Telecom Holdings Ltd., Telenor Invest AS and IIU Nominees Limited. Mr. Denis O’Brien, through Communicorp Group Limited of which he was the principal shareholder, held an interest of between 37.5% and 40% in Esat Digifone. He is both nationally and internationally an extremely successful and wealthy businessman and is very well known as such.

7. The deadline for receipt of applications was originally set for the 23rd June, 1995, but on the 16th June, 1995, the Minister decided to extend such date to the 4th August, 1995. It is this decision to defer the closing date which was the subject of the First proceedings brought by Comcast (Record No. 2001/9288P). Comcast submitted their tender application on time, as did Persona, which incidentally says that in addition to the cost of the tender documents, they expended over six million euro in the preparation of their tender.

8. As noted, the result of the competition was announced on the 25th October, 1995, with Esat Digifone being nominated as the preferred bidder with whom the State would enter into exclusive negotiations with a view to concluding the overall process. On the 16th May, 1996 the second GSM licence was officially awarded to Esat Digifone. It is the awarding of this licence, which founded Comcast’s Second proceedings (Record No. 2001/15119P) and the proceedings brought by Persona (Record No. 2001/9223P).

9. In 2001, both Comcast and Persona initiated their respective proceedings against the Minister for Public Enterprise, Ireland and the Attorney General (the “State defendants”), by the issue of Plenary Summonses. It should be noted that in addition to the State defendants, Comcast, in both sets of proceedings, also joined Mr. Michael Lowry, T.D., Esat Telecommunications Ltd. which acted as a holding company for Esat Telecom Holdings Ltd., and Mr. Denis O’Brien. No similar step was taken by Persona.

10. The Plenary Summonses were served in the Comcast and Persona proceedings shortly prior to the expiry of the period within which they remain in force, without having to be renewed. Appearances were duly entered and a Statement of Claim was served by Comcast in both actions on the 3rd June, 2005 and by Persona on the 21st April, 2006. On the 26th May, 2006 the State defendants issued motions seeking to have the Comcast proceedings dismissed. A similar motion to the same effect issued in the case of Persona. On the 13th June, 2007 Gilligan J., after careful consideration, delivered a composite judgment, striking out the issued proceedings on the grounds of want of prosecution and in the interests of justice. Both Comcast and Persona have appealed that judgment and the resulting Order. On the 17th July, 2012 this Court allowed those appeals. This is the reasoning for my decision to that effect.

11. In order to explain the relevant sequence it may be helpful to plot a timeline of the most pertinent dates and events, constituting the background to these appeals.

12. Matters Common to All proceedings:
2nd March, 1995 Minister announces bidding process for second GSM mobile phone licence;

16th June, 1995 Minister extends deadline for receipt of tenders to the 4th August, 1995;

25th October, 1995 Minister announces that Esat Digifone has won the comparative evaluation process;

16th May, 1996 Awarding of GSM licence to Esat Digifone;

26th September, 1997 Establishment of Moriarty Tribunal.

13. Comcast proceedings (2001/9288P; 2001/15119P):
15th June, 2001 Plenary Summons issues: First Comcast proceedings (Record No. 2001/9288P);

10th October, 2001 Plenary Summons issues: Second Comcast proceedings (Record No. 2001/15119P);

14th June, 2002 Service of Summons in First Comcast proceedings;

20th June, 2002 State defendants enter an Appearance (Record No. 2001/9288P) and seek the delivery of a Statement of Claim;

10th July, 2002 Esat Telecommunications Ltd. enters an Appearance and seeks delivery of the Statement of Claim;

4th October, 2002 Service of Summons in Second Comcast proceedings;

24th October, 2002 Mr. Michael Lowry, T.D., the second named defendant enters an Appearance and seeks delivery of the Statement of Claim;

25th October, 2002 Mr. Denis O’Brien, the fourth named defendant enters an Appearance and seeks delivery of the Statement of Claim;

3rd December, 2002 Moriarty Tribunal commences public hearings into the award of the second GSM licence. Between December, 2002 and July, 2003, it hears evidence from Departmental Officials;

16th December, 2002 State defendants enter an Appearance (Record No. 2001/15119P) and seek delivery of a Statement of Claim;

8th October, 2004 Comcast issue Notice of Intention to Proceed;

20th December, 2004 Mr. O’Brien issues a Motion, returnable before the Master seeking to strike out the Comcast proceedings for want of prosecution;

5th April, 2005 Master of the High Court refuses to strike out such proceedings;

14th April, 2005 Mr. O’Brien appeals such Order;

9th May, 2005 Kelly J. makes an Order whereby Comcast’s proceedings are struck out unless a Statement of Claims is delivered within 28 days;

3rd June, 2005 Comcast delivers a Statement of Claim in both sets of proceedings within the permitted 28 days: the same is duly served on all defendants;

14th May, 2006 Mr. O’Brien serves a Defence and a Counterclaim in each proceeding;

26th May, 2006 State defendants issue Notice of Motion seeking to have both sets of proceedings dismissed.

14. Persona proceedings (2001/9223P):
15th June, 2001 Plenary Summons issues (Record No. 2001/9223P);

10th June, 2002 Service of Summons;

20th June, 2002 State defendants enter an Appearance, and seek delivery of a Statement of Claim;

3rd December, 2002 Moriarty Tribunal commences public hearings; between December, 2002 and July, 2003, it hears evidence from Departmental Officials;

22nd March, 2006 Persona changes solicitors;

23rd March, 2006 Service of Notice of Change of Solicitor by registered post;

31st March, 2006 The Chief State Solicitor writes to Persona’s Solicitors calling for the delivery of a Statement of Claim, consenting to its late filing up to and including 21 days from the date thereof, and threatening to proceed with a Motion to strike out the proceedings for want of prosecution should Persona miss the deadline;

5th April, 2006 Persona requests an extension of this period for two weeks;

11th April, 2006 Reminder letter issues to the Chief State Solicitor’s office;

21st April, 2006 A second reminder letter issues regarding such extension;

21st April, 2006 Persona delivers the Statement of Claim within the period of time consented to;

26th May, 2006 State defendants issue Notice of Motion seeking to have the Persona proceedings dismissed.

15. The three Motions issued by the State defendants are identical in all cases and relying on the inherent jurisdiction of the Court seek, inter alia an order dismissing the actions (i) for delay and want of prosecution, and (ii) in the interests of justice; such further ancillary orders as were appropriate are also sought. The applications were grounded upon the Affidavit of one Mr. Matthew Shaw, a solicitor in the Chief State Solicitor’s Office who is dealing with the matter and who was also heavily involved in the Moriarty Tribunal. In essence he alleged that:

      (i) there has been inordinate and inexcusable delay in both the commencement and prosecution of such actions, “resulting in prejudice”, to the State defendants, such that “the balance of justice” requires a dismissal of all cases;

      (ii) the periods of delay – between five and six years from the dates of the alleged wrongdoing to the service of the Plenary Summonses and between nine and ten years to the service of the Statements of Claim – are in themselves such, that would justify the relief sought;

      (iii) the right of the State defendants to fair procedures and to have a fair trial would likewise justify the same conclusion; and finally

      (iv) the delays complained of infringe the rights of the State defendants under Article 6 of the European Convention on Human Rights.

16. In response, Comcast, through the replying Affidavit of Mr. Damien Young, solicitor stated that:
      (i) the delay is excusable as the issues in controversy were complex and also were the subject matter of continued investigation by the Moriarty Tribunal: it was therefore reasonable for Comcast to await the outcome of the Tribunal prior to delivery of a particularised Statement of Claim;

      (ii) even if the delay is found to be inexcusable, the balance of justice requires that the proceedings should not be dismissed as the State defendants have not suffered any particular prejudice as a result of the delay;

      (iii) if however the claim is struck out the plaintiffs will suffer obvious prejudice.

17. On behalf of Persona, Mr. William Jolley, solicitor from the firm Bowler Geraghty & Co. Solicitors swore the replying Affidavit and averred that the delay complained of is excusable as:
      (i) any delay in issuing the proceedings resulted from the constant reassurances from the State defendants as to the integrity of the tendering process;

      (ii) in June, 2002 the plaintiffs, in a single request sought and were refused access, firstly under the Freedom of Information Acts, 1997 - 2009, and secondly on a voluntary basis, to all records regarding the tendering competition;

      (iii) the State defendants were aware of Persona’s intention to prosecute the proceedings due to the constant attendance of their legal representatives at the Moriarty Tribunal;

      (iv) not long after the service of the proceedings, whilst both were in attendance at the Tribunal, the former solicitor for Persona, Mr. Gerard Moloney told Mr. Shaw, in what was described as a “casual” conversation, that a Statement of Claim would not be delivered for the foreseeable future. In response, Mr. Shaw did not object and apparently seemed relieved;

      (v) the State defendants never complained about delay, not even on receipt of the Notice of Change of Solicitor in March, 2006. In fact, they issued a letter on the 31st March, 2006 seeking a Statement of Claim within 21 days from that date, it being claimed that the motive for the issue of such letter was to “catch the plaintiffs on the hop”;

      (vi) the Statement of Claim was delivered within the permitted time;

      (vii) due to the seriousness of the allegations and complexity of the issues, the Tribunal was of assistance in circumstances where the State defendants refused to furnish information to the plaintiffs; and

      (viii) had the plaintiffs sought to prosecute the proceedings during the currency of the Tribunal, the State defendants would have objected, claiming inability to deal with both concurrently.

18. In their Statement of Claim, dated the 3rd June, 2005 (2001/15119P), Comcast alleged that wrongfully and in breach of contract, in breach of duty and in breach of statutory duty, the Minister and/or his servants or agents:
      (a) compromised the integrity of the tender process by communicating with bidders in contravention of the established guidelines;

      (b) disclosed or caused to be disclosed confidential information to Esat Digifone in relation to the bid process;

      (c) altered the terms of and unlawfully interfered with the tender process in order to favour Esat Digifone; and

      (d) accepted improper payments made by Mr. Denis O’Brien and/or Esat Telecommunications Ltd. for the purpose of influencing the outcome of the tender process and/or rewarding the Minister for having interfered to ensure that the licence was awarded to Esat Digifone.

19. Particulars under each heading are then given but the entire Statement of Claim is premised by the assertion that the plaintiffs are unable to fully particularise the extent of the wrongdoing until the investigations being conducted by the Moriarty Tribunal are concluded. The Statement of Claim in the first Comcast proceedings has a similar basis although it is referenced to the Minister’s announcement in October, 1995. Damages are sought for the breaches above stated as well as for misfeasance in public office, fraud, deceit, and breach of the Prevention of Corruption Act, 1906, as amended.

20. In addition, Comcast alleged that both Mr. O’Brien and Esat Telecommunications Ltd. similarly owed a duty to refrain, from engaging in wrongful acts calculated to interfere with the integrity of the tender process, thereby ensuring award of the licence to Esat Digifone in breach of the governing rules. Comcast further claimed that both Mr. O’Brien and Esat Telecommunications Ltd. breached their duty by one or both of them causing payments to be made to the Minister, in breach of the tender process rules and in contravention of the Prevention of Corruption Act, 1906, as amended and that these payments were made in order to secure the award of the licence to Esat Digifone and/or to reward the Minister for his intervention. Comcast reserved the right to deliver further particulars at any time before trial. Finally, Comcast alleged that it suffered loss and damage as a result.

21. Mr. O’Brien, the fourth named defendant, served a Defence in which he simply denied the allegations: he also filed a Counterclaim in which he alleged that:

      (i) the proceedings are maliciously motivated and issued out of spite, resulting from a failure to secure the GSM licence;

      (ii) the proceedings were instituted maliciously without any supporting evidence and in the hope that findings of the Tribunal would substantiate the claims made;

      (iii) the proceedings were instituted without reasonable and probable cause as the plaintiffs do not have knowledge of any alleged wrongdoing or unlawful actions on the part of Mr. O’Brien; and

      (iv) as a result, he, Mr. O’Brien, has suffered injury to his reputation and complains of moral stigma due to the institution of these adversarial proceedings, and has suffered loss and damage.

He also caused to be issued a Notice for Particulars.

22. Persona made similar allegations against the Minister and other defendants in their Statement of Claim. In particular they pleaded: breach of contract; breach of duty, including breach of statutory duty; misfeasance in public office; breach of legitimate expectations; breach of constitutional rights, in particular Articles 40.3 and 43 of the Constitution; deceit and misrepresentation, including fraudulent misrepresentation. They further claim that the Minister conspired with Esat Digifone to secure for them the award of the licence, thereby wrongly penetrating the competition, and/or ignored/disregarded the competition process, and/or used the process for the purpose of concealment; that these acts were unlawful and intended predominantly to cause injury or damage to Comcast, or if not unlawful per se were rendered such by this predominant purpose. Moreover they assert that the Minister dishonestly furnished assistance to Esat Digifone and breached the plaintiffs’ rights under EU law. They seek damages in respect of these matters.

23. The State defendants did not at any stage in either the Comcast or the Persona proceedings, serve a Defence or raise Particulars or otherwise respond to the allegations as pleaded, save for issuing the Motions, the subject matter of this judgment.

The Relevant Legal Prinicples:
24. As noted above the basis of the relief being sought is stated in the alternative, firstly, on the delay being inordinate and inexcusable, and secondly, by reason of such delay justice requires the dismissal of the proceedings. The Motions may thus be classified as seeking, a dismissal for want of prosecution and in the interests of justice. Apart from these two strands I know of no other approach in the present context. The jurisdiction invoked is said to be inherent to the court: no mention is made in the Motions of the Rules of the Superior Courts (the “Rules”), in particular neither O 27 R 1 nor O 122 R 11 are mentioned. Even if they had I consider the underlying jurisdiction to be the same.

25. For many years the court’s discretion in this jurisdiction to dismiss an action for want of prosecution has been consistently governed by the principles articulated by Finlay P. (in 1979) in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 (“Rainsford”), as further developed, or consolidated by the Supreme Court in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (“Primor”), where Hamilton C.J., deriving from the relevant authorities, summarised comprehensively the principles to be applied. As such are very well known, the passage from the judgment, so often referred to, which appears at page 475 and 476 of the report does not require citation. It is sufficient to say that if inordinate delay is established, which is incapable of justification, the “balance of justice” must also favour the moving party before an action is terminated without an adjudication on the merits. I shall refer to what was established by Rainsford/Primor as the “Primor” principles.

26. At paragraph (d) of the passage referred to, the learned Chief Justice outlines a non-exhaustive list of factors, which fall to be considered under the third limb of the criteria. These are:

      (d)(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”;

      (d)(iv) whether any “such delay or conduct” on the part of the defendant “amounts to acquiescence”, in respect of the plaintiff's delay; and

      (d)(vi) whether the plaintiff’s delay has caused substantial prejudice to the defendant or has seriously impaired the likelihood of a fair trial.

These are matters which I will refer to again later in the judgment.

27. The factors listed are evidently non-exhaustive: some may have no relevance to a given case which may have to be determined by other matters. All will depend on specific circumstances. However, what must be emphasised is that, at the level of principle, the position of both parties must be appraised and evaluated. All relevant material must be looked at, with no single or individual matter being conclusive save that as mandated by the particular case. As Fennelly J. said in Anglo Irish Beef Processors Ltd. v. Montgomery [2002] 3 I.R. 510, the relevant considerations should be viewed “as related matters affecting the central decision as to what is just”. That is the sole objective and exclusive goal to be achieved: when delay, with the above characteristics is in play, the court, on these principles is concerned only with achieving a just result. What does justice, between the particular parties and in the particular circumstances, demand? Such is the end line of this type of analysis.

28. There is one aspect of this jurisprudence which has attracted some varying judicial comment in the recent past and which is again referred to by Clarke J. in his judgment in the instant case. It relates to the importance which should be assigned, to differing factors in each of the three limbs of the test under discussion. Hardiman J. in Gilroy v. Flynn [2005] 1 I.L.R.M. 290 (“Gilroy”), having referred to a recent amendment to O 27 R 1 (S.I. 63/2004) of the Rules, to increased judicial awareness regarding delay, to the enactment of the European Convention on Human Rights Act 2003 and to judgments of the European Court of Human Rights, such as McMullen v. Ireland (42297/98) July 29, 2004, suggested that delays previously overlooked may not in future be viewed upon so benignly. The “dilatory” were put on alert as to the consequences of their “dilatoriness”. Clarke J. took up the same theme in a number of cases including Stephens v. Paul Flynn Limited [2005] I.E.H.C. 148, Rogers v. Michelin Tyre Plc, Michelin Pensions Trust (No 2) Limited [2005] I.E.H.C. 294 (“Rogers”), and Kategrove Ltd. (In Receivership Hugo Merry and Peter Schofield) v. Anglo Irish Bank Corporation Plc. and Anor. [2006] I.E.H.C. 210, and was of the view that, with regard to relevant factors, some significant weight re-adjustment was necessary so as to ensure a “stricter approach to compliance”. The learned judge went on to say that Article 6 of the European Convention on Human Rights (the “Convention”) may demand such an approach which may impact upon the balance of justice by “imposing greater obligations of expedition and against requiring the same level of prejudice as heretofore”.

29. In a judgment which post dated that of the trial judge in the instant cases, Geoghegan J., in Desmond v. M.G.N. Limited [2009] 1 I.R. 737 (“Desmond”), being one of the two judges constituting the majority decision, specifically refers to Gilroy. Having described the views of Hardiman J. as being obiter, the learned judge reaffirmed his belief in the Primor principles and felt that even against the backdrop of any case law from the European Court of Human Rights, no justification existed for a reconsideration as to how such principles should be applied. Macken J. was satisfied that notwithstanding the Convention and any case law there under, the Primor principles remain appropriate. Incidentally, I am unaware of any jurisprudence from that Court which demands the dismissal of an action on delay grounds. In McBrearty and Others v. the North Western Health Board and Others [2010] I.E.S.C. 27 (“McBrearty”), the most recent case of direct relevance on this issue, Geoghegan J., with whom the other members of the Court agreed, once more referred to this matter and reiterated that the Primor principles “had stood the test of time”. Whilst pointing out that vigilance must be exercised, particularly if “culpable delay” had been established, he held nonetheless that there was “no justification for any major departure from these established and well-tried principles”.

30. I have looked closely at this issue in the instant case, only because the absence of comment may otherwise be taken, as representing a view which I do not hold. My views coincide with those referred to in the previous paragraph. I therefore see no reason, at least at this stage, for any formal reassessment of how Primor should be applied. No-one, so far as I am aware, has suggested that the three limb approach established in such cases should be substantially altered or that any matter or factor heretofore relevant, should be omitted from future consideration. In fact it should immediately be said that Clarke J. in Rogers acknowledged that his suggested shift of emphasis did not envisage any change in the matters to be considered but rather involved an adjustment within the existing practice. Even so, in my view, when both inordinate and inexcusable delay is being considered and when the balance of justice is being looked at, the court always has a discretion in its evaluation of the presenting circumstances, from which the ultimate decision is made. That discretion is, and in my opinion should remain, sufficiently flexible to deal with any situation or event: in its application to date I know of no case where it could be legitimately argued or suggested that the result arrived at was the wrong one or was an unjust one.

31. My concern with any such formal adjustment, or “recalibration” as it has been described, can be illustrated by reference to the facts in Guerin v. Guerin [1992] 2 I. R. 287 (“Guerin”). It will be recalled that the plaintiff in that case met with a road traffic accident in 1964 when aged 4, but that the proceedings were not issued until 1984, more than 20 years later. Whilst the Statute of Limitations did not arise for consideration and whilst O’Domhnaill v. Merrick [1985] I.L.R.M. 40 (“O’Domhnaill”) and Toal v. Duignan (No. 1) [1991] I.L.R.M. 135 (“Toal (No. 1)”) and Toal v. Duignan (No. 2) [1991] I.L.R.M. 140 (“Toal (No. 2)”) are referred to in the judgment, the learned judge decided the issue by reference to Primor. In a powerful understanding of the disadvantaged and with a deep insight of the deprivation under which they labour, Costello J. excused the delay by reference to the plaintiff and his family’s destituteness in virtually every aspect of their existence, including their living, financial, and educational circumstances. As stated by him they survived in a “world from which the world so familiar to lawyers in which people sue and are sued was remote and arcane”. Given their particular circumstances it was held that the delay, although undoubtedly inordinate, was in the judge’s view excusable. Any contrary result in Guerin I believe would have been unjust, but nonetheless may have been possible if weight reassessment was in place.

32. In addition I ask whether such an alteration as a matter of principle could, at least to some extent, disregard from consideration or affect the appraisal of, circumstances such as those outlined by Fennelly J., at page 518 of Anglo where he said “[t]here may, of course, be cases where the unpredictable hazards of life afflict the course of litigation. Individuals may be handicapped by poverty, illness, ignorance or absence from the jurisdiction. Documents may be mislaid, lost or destroyed. Poor or inadequate legal advice or service may, through no fault of the litigant, impede the progress of a claim.” The learned judge offered such circumstances as examples of what may be excusatory. One wonders at the extent to which such matters would be undermined in the alternative situation? Could such be still accommodated in a just and fair way? Maybe, but in the absence of compelling reason I see no necessity to test that proposition. Therefore, whilst I entirely agree that delays should be avoided wherever possible, and that such delays may be scrutinised with more vigour and less understanding than previously, nonetheless, there is sufficient capacity within the existing principles and their application to underpin this level of vigilance, but not such that unduly influences an outcome at the potential cost of justice. Consequently, whilst not foreclosing on the possibility that events may arise which would require a reconsideration of this current approach, nonetheless, I do not believe that such has, at this stage, arisen.

33. In expressing this opinion may I immediately disown any interpretation which suggests that the old days of “endless indulgence” have returned. I hold no such views. It is not what I convey or intend to convey. My point is utterly simple. In the situation under discussion justice is best achieved by letting it react to given facts. The same period of delay, in different cases, may demand different treatment. Justice is not always referenced to the highest bar. If that were the case the wealthy, powerful, and the influential would set it. That should not be allowed. Justice sets its own bar. A failure of the average man and his average lawyer to match the gold standard of their opposite in society and in practice must not be necessarily condemned.

34. In the same general context there is another matter which I would like to touch on. It relates to the “inactivity” on the part of a defendant, in circumstances in which he subsequently complains of inordinate and inexcusable delay on the part of the plaintiff. In a number of cases, a distinction has been made between what has been described variously as “active delay” or “culpable delay” as distinct from “inactive delay” or “mere delay”. The former in general refers to an undischarged obligation on the defendant’s part whereas the latter is intended to reflect the passage of time simpliciter or the “do nothing” approach. Again, I remain unconvinced that such a formal departmentalising of the defendant’s conduct is justified. In Dowd v. Kerry County Council [1970] I.R. 27 O’Dálaigh C.J., with whom Walsh and Budd JJ. agreed, said the following by way of a general observation:

      “First, in weighing the extent of one party’s delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution. There is the provision of Order 27, r. 1, and the provision of Order 108, r. 11, where there has been no proceeding for two years. The adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances it is acted upon by a defendant in the hope that he will “get by” without having to face the peril of being decreed. Litigation is a two-party operation, and the conduct of both parties should be looked at” [emphasis added].
35. The passage from the judgment of Finlay P. in Rainsford, where he said that “[d]elay on the part of a defendant seeking a dismiss of the action, and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution, may be an ingredient in the exercise by the court of its discretion” [emphasis added], is, on occasion, relied upon as justifying the distinction above referred to, with the consequence that depending on how this activity can be categorised, different weight considerations apply. It is not at all clear to me that the learned President, as he then was, intended such a distinction. Certainly I do not believe that Primor supports such a view, but I readily accept that to varying degrees other judges have.

36. Whilst there can be no doubt but that the moving party has the greater obligation of expedition overall, nonetheless the defendant’s interaction or lack of it, as the case may be, with the delay of which he later complains, whether active or purely inactive, to use such phrase, may rightfully attract condemnation by virtue of many other circumstances such as: the identity and character of the particular defendant; the position which he holds; whether that be public or private; the standing and accountability of that position, whether it be representative of the public, of an institution which it serves or otherwise; and the nature of the issues which he is called upon to answer. Given the gravity of the charges levelled against the State defendants in this case, I am astonished that they have not sought, with all due alacrity, an immediate opportunity to answer such charges and to vindicate their repeated assertion as to the integrity of such a hugely significant public process. Whilst I readily accept that what in truth is the plaintiffs’ delay should not rest on the defendant’s table, nonetheless it must be remembered that the constitutional guarantee of fair procedures and the right to a fair trial – both of which are invariably relied upon in motions to dismiss for either want of prosecution or in the interests of justice – are at the disposal of a defendant in a host of varying circumstances, and relatively speaking from a very early stage of the proceedings. See O 27 R 1, dealing with a failure to deliver a Statement of Claim, O 36 R 12, regarding the absence of a Notice of Trial, and O 122 R 11, permitting a dismiss application for want of prosecution, of the Rules. Those rules, coupled with many statutory provisions, as well as judicial precedent, are all designed to further, in an administrative, practical and operational sense, the defendant’s rights, every bit as much as the plaintiff’s rights. Murphy J. declares so in Hogan and Others v. Jones and Others [1994] 1 I.L.R.M. 512 (“Hogan”), where at page 520 the learned judge states:

      “insofar as the defendants assert a constitutional right to have the litigation conducted in accordance with fair procedures, it seems to me that they and all litigants must view the Rules of the Superior Courts and the relevant legislation (including in particular the statute of limitations) as part of the structure designed to give effect to the constitutional right. The constitutional right to fair procedures is protected not only by the power of the court to dismiss a case for want of prosecution but also by the other interlocutory steps or procedures which protect either party from undue delay by the other”.
I respectfully agree with what the learned trial judge has stated.

37. Hogan is also of interest by reason of the manner in which the judge dealt with the delay alleged against the particular defendant, which had two aspects to it. The first was its failure to deliver a defence, which is not of interest, but the second, which was its failure to move against the plaintiff, which itself was in serious default, is. In that context reference was made to Calvert v. Stollznow [1980] 2 N.S.W.L.R. 749, where the issue as to how far a defendant should go to compel a plaintiff “to progress the outstanding litigation” is discussed. Cross J., in his unreported judgment but which was affirmed on appeal as stated, disagrees with the suggestion found in some English cases, that a defendant is entitled to “let sleeping dogs lie” in the hope that the action will expire. If he chooses this route and if his tactical gamble, for that is precisely what it is, should not come to pass, then surely he should not be allowed to subsequently rely on that delay to advantage himself? To so permit seems unattractive and unfair. This description is mine but the views of Cross J. are to the same effect. In any event, whilst describing the relevant passage as “apposite”, Murphy J. did not find it necessary to further comment on this apparent difference, stating that “the topic is amply covered in this country by a series of decisions of the Supreme Court reaching from Dowd v. Kerry County Council [1970] IR 27 to … Celtic Ceramics Ltd v. IDA affirming the decision of O'Hanlon J reported in [1993] ILRM 248”. I cannot see any formal system of classification or rating of the defendants’ conduct in such cases.

38. Consequently, I remain of the view that differentiation at a formal level of the defendant’s activity, with the consequences that have been suggested, is one which I doubt is either desirable or necessary.

39. However, if some form of recalibration is generally favoured then I have no doubt but that mutuality of adjustment must apply and that a greater sense of awareness must also attach to the defendant’s position, in whatever way that may have come about. Otherwise to say that justice is a two way process is entirely hollow.

40. As the motions which issued in these proceedings disclose, the dismissal relief is sought not only for failing to prosecute but also on the basis of the interests of justice. That the courts have such an inherent jurisdiction cannot be doubted. It surfaced in O’Domhnaill, was further established in Toal (No. 1) and Toal (No. 2), and since then, in several cases, has been accepted without question. It has a somewhat distinct basis and separate existence from Primor, but many of the matters relevant for its application are common to both. The test to be applied has been described variously such as, by reason of lapse of time or delay:

      (i) is there a real and serious risk of an unfair trial, and/or of an unjust result;

      (ii) is there a clear and patent injustice in asking the defendant to defend; or

      (iii) does it place an inexcusable and unfair burden on such defendant to so defend?

The justification for the existence of this jurisdiction was described by Finlay C.J. in Toal (No. 2), a case in which the plaintiff was blameless for the delay involved and where the proceedings were issued within the permitted statutory period, as stemming from the supremacy of the court’s constitutional obligation which transcends any legislative provision to achieve justice inter partes. No specific article of the Constitution was quoted in this regard, but the administration of justice and the personal rights provisions, must have been intended.

41. Some of the factors to be considered by the court on this type of application were identified in Manning v. Benson and Hedges Ltd. [2005] 1 I.L.R.M. 190 by Finlay Geoghegan J. at page 196 of the report. I would respectfully agree with the learned judge and add only, as she intended, that such were merely indicative of what might overall be relevant for appraisal in any given case.

42. There are a number of features to this jurisdiction which are worthy of note: firstly that it applies even if the proceedings are instituted within the statutory period prescribed for by the Oireachtas; secondly, that a defendant can succeed in avoiding a merit hearing even where a plaintiff is entirely blameless for the delay, in either in a personal or a vicarious sense; and thirdly, that the time period looked at, commences from the date of the alleged wrongful acts and continues to the anticipated date of trial. In addition however, it also has the distinct feature of its focus being on the defendant: as appears from the descriptive nature of the test as given, the criterion essentially is defendant directed. This is in stark contrast to the Primor principles where the positions of both are equally considered. It is therefore clear that this is a wider jurisdiction than Primor with a lower threshold to surmount before its successful invocation. That distinction, coupled with the others as identified, makes this jurisdiction one which should be sparsely used and little availed of. I fully agree with the words of Hogan J. in Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) and the Minister for Defence, Ireland, and the Attorney General [2011] I.E.H.C. 11 where in this context, the learned judge, having stated that such jurisdiction permits the court in an appropriate case to “strike out proceedings, even though the third limb of the Primor test might not have been established”, went on to caution that, “[o]f course, such cases would have to be exceptional”.

43. From my experience it seems that ever since this jurisdiction has became well established, it has routinely been included as an alternative relief by defendants in seeking to have actions dismissed for want of prosecution. I decry such a move. Given the capacity of Primor to deliver a just result, I cannot see any justification for its use as a matter of course. While I entirely acknowledge the importance of this jurisdiction and access to it, nonetheless its recourse in my view should be had only in the most exceptional circumstances.

44. From a consideration of the Pleadings in these cases, such as they are, of the Affidavits sworn to ground and oppose the applications, and in particular noting the relevant time period and events outlined in paragraphs 12-14 infra, exceptionality, of the scope demanded, cannot in my view be said to exist and accordingly there are no grounds upon which this type of jurisdiction can succeed in this case.

Persona:
45. In his judgment Hardiman J. stresses the uniqueness of the proceedings at issue. Save in one respect I entirely agree. In that respect however, Persona’s case is utterly mundane. Having been called upon to deliver a Statement of Claim, Persona had 21 days to do so under O 20 R 3 of the Rules. Their failure in this regard meant that they forfeited, what otherwise was an unconditional right to do so, the consequences being:

      (i) that before they could take that necessary step they required permission, which could be obtained in either one of two ways: a letter of consent from the relevant defendants, or a court order; and

      (ii) an exposure to a Motion to Dismiss for want of prosecution.

Under O 27 R 1 of the Rules where a plaintiff fails to deliver a Statement of Claim within the period allowed, the defendant may, at the expiration of the period, apply to the court to dismiss the action for want of prosecution. However as this step may be taken at the moment the deadline passes and as this may give rise to unmeritorious Motions which add to litigation costs, the rule also provides that the defendant, when threatening to issue such a motion must furnish a 21 day consent letter to the late delivery of the Statement of Claim. If complied with, the matter is at an end. If not complied with the Statement of Claim can still be delivered up to seven days after the service of the dismiss motion; if it is the motion shall then stand struck out with measured costs being payable to the defendant: O 27 R 1A(3) of the Rules. If not, the motion proceeds in the normal way.

46. This procedure, although available at any time after the 21 day period referred to, was not in fact availed of by the State defendants in this case. As no proceedings had taken place for a period of two years prior, the dismiss motion when issued did not require adherence to such procedure by virtue of O 122 R 11 of the Rules. No letter of extension as mentioned was therefore mandatory. So against this background, let us again recall what actually happened. As stated above, upon their change of solicitor Persona served, as required, a Notice of Change of Solicitor on the 23rd March, 2006: they did so by way of registered post. As of this date, the Persona proceedings, apart from Appearances, had stood dormant since the issue of the Summons, almost 5 years previously. Notably, neither in the Notice of Change, nor in the accompanying letter was there any indication by Persona as to how they intended to progress the proceedings, in particular what their intentions were regarding the delivery of the Statement of Claim. No letter of consent was sought in this regard and neither was a Notice of Intention to Proceed served. The reasons become clear by reference to the correspondence which followed from Persona’s Solicitors. Nonetheless, the Chief State Solicitor responded on the 31st March, 2012 to the Notice of Change by stating:

      “Dear Sirs,

      I refer to the above entitled proceedings and note that you have not filed a Statement of Claim on behalf of your clients. Please note that if you do not file a Statement of Claim 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 first, second and third defendants, I hereby consent to the late filing of the Statement of Claim by you up to and including 21 days from the date hereof.”

47. Mr. Jolley, Persona’s solicitor, replied on the 5th April, by thanking him for the extension but, in light of his firm’s recent retainer and the necessity to absorb, appraise and evaluate the numerous documents involved and more particularly the seriousness of the issues emerging, as well as the incidental matter of the up-coming Easter holidays, requested a further extension of two weeks. Despite further articulating such matters and notwithstanding two further reminder letters on the 11th and 21st April, 2006, as well as several phone calls, the Chief State Solicitor saw fit not to respond or even acknowledge such correspondence. Nonetheless, Persona in fact delivered a Statement of Claim within the stipulated 21 day period. About a month later the State defendants issued the Notices of Motion under review on this appeal.

48. By asking what the State defendants intended to convey by such letter, I don’t mean to enquire into their motives for its issue, although I would be most curious to know. Mr. Jolley has speculated in this regard: he avers on oath that the State wished to catch his clients “on the hop”. This issue from my point of view can remain unresolved as I intend to proceed on the basis of accepting the letter at face value.

49. Before proceeding further I should note that in his judgment, Clarke J. leaves open the question as to whether the consent letter issued under O 27 R 1 rather than O 122 R 11 of the Rules. Having again looked at the evidence and having considered the background and the circumstances then prevailing, I think the former is most unlikely. Firstly, the letter makes no mention of any order or rule; secondly, I know of no reason why the State would opt for such an approach and thereby concede, what may be a significant litigious advantage to Persona, when freed of such advantage they could likewise have moved under O 122 R 11 for the same relief; thirdly, it is most likely that Mr. Shaw would have so explained in his grounding Affidavit if that had been the case, and finally, at least on one view, the allegation made by Mr. Jolley could reflect badly on the State, yet they never responded to this averment. Such an approach from my point of view would simply make no sense and therefore I think it is highly implausible. Consequently, I intend to proceed as I think the logic of the situation dictates.

50. The seeking of an extension of time where default in pleading has arisen, (as is more usual) and the giving of such consent, is a routine and longstanding practice, underpinned by rules of court, which enormously facilitates the running of litigation. Without a time limit for the service of documents, disorder would prevail and the justifiable aim of expedition in, and finality of, litigation would be unattainable. However, experience of work in the real world must also be recognised: for a variety of reasons, some good, some bad, such time limits are regularly not adhered to. Provision is therefore made to accommodate the deserving and to deal with the undeserving in this regard. So the parties themselves, or the courts, under the Rules have the capacity to allow or disallow time as strategy, or justice requires. This is so much a part of ordinary litigation that it is not newsworthy.

51. By such letter in this case the State defendants informed Persona that with their permission they could take the next step in the litigation, namely the service of Statement of Claim, within 21 days. The clear representation was that if they did so, the State defendants would accept same, and by inference would not seek to prevent that step by reliance on past events. This permission, or if one likes, concession, came with a stern warning that any failure to take the opportunity offered would result in the issue of a dismiss motion. It has never been suggested that the letter issued accidentally or by mistake or that its issue was anything other than a conscious and advised one.

52. Having stood this representation on its head, and despite full compliance with their stipulated condition, the State defendants, nonetheless issued a motion seeking to have the action dismissed. At the hearing, their counsel suggested that the letter did not extend as far as to imply that upon compliance his clients would not issue a Motion to dismiss in the interest of justice. I reject this distinction as utterly spurious. The indication from the letter is clear: the only plausible interpretation is that as described herein. Such letters are utterly standard procedure and are crucial to the practical functioning of inter partes litigation and the court’s facilitating role in this regard. If it were permissible on every occasion of delay, to immediately issue a motion for want of prosecution the courts would become so suffocated that chaos would ensue. Moreover, if a defendant, such as the State defendants in this case, could immediately disown the consequences of their own action in furnishing consent, even when not requested and for which no intervening circumstances could possibly account, this would equally result in a deluge of unjustified applications to the court.

53. The second method by which Persona could have delivered a Statement of Claim was to get the court’s permission to do so. Arguably from a “justice” point of view a voluntary letter given without request has greater standing than a contested court Order. Apart from such point altogether, if on the 31st March, 2006 Persona had obtained an Order, whether it be an “unless” one or otherwise, permitting the delivery of a Statement of Claim within 21 days, and had such been complied with, would the court allow the State defendants, within a matter of weeks thereafter, to issue a motion seeking to dismiss the proceedings by reason of delay? I have no doubt but that the court would refuse to do so and would simply not entertain such motion.

54. The precise basis upon which this result would rest could be the subject matter of some discussion. Issues such as acquiescence, estoppel of some description, and unconscionable behaviour come to mind. There are certain difficulties in applying each of these concepts. In my view however, a more satisfactory basis for allowing this appeal is one based on abuse of process. Abuse of process is, as famously articulated by Lord Diplock in Hunter v. Chief Constable of West Midlands and another [1981] 3 All E.R. 727, at 729:

      “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-minded people.”
See Smyth v. Tunney, Devine, and Crofter Properties Ltd. [2009] 3 I.R. 322, in particular para 21, where Finnegan J. in all material respects endorses this passage.

55. Thus, where, having received the Statement of Claim from Persona within the period consented to, the Chief State Solicitor issued a Notice of Motion for dismissal for want of prosecution within a month, this must equally be considered, irrespective of any motive to catch the new solicitors for Persona “on the hop” or otherwise, to amount to an abuse of process. Such is an aspect of the right to have litigation fairly conducted, which in turn is deeply rooted in the courts jurisdiction regarding the administration of justice. I would therefore allow the appeal.

56. Even if I am wrong in this regard I would arrive at the same conclusion for the reasons outlined later in this judgment, as I consider the admittedly inordinate delay to be excusable, largely on the same grounds as apply in the Comcast case.

Comcast:
57. The issues raised by Comcast in their proceedings are strikingly similar to those ventilated in the case of Persona. Consequently, if the State defendants have to face the Persona proceedings, as they must, it is impossible to identify any reason why they should not also have to face the Comcast proceedings. In addition, counsel on behalf of such defendants, conceded during the course of the appeal hearing that, if Comcast had sought a similar letter of consent, he could see no reason why that would not have been forthcoming. In fact, their Statement of Claim was delivered in June, 2005, almost one year before the issue of the motions under review. No response of any type was made to that move by the defendants. While tempting to decide the Comcast appeal solely on these grounds, it may be perceived as somewhat unsatisfactory to do so. Consequently, it remains to be considered whether, under the Primor test, the delay to which Comcast concedes as being inordinate, was excusable. The resulting assessment must, of necessity, depend on the particular circumstances of the case. However, apart from the consent letter it is agreed that the relevant circumstances in both cases are materially similar and may thus be so treated.

58. Comcast and Persona seek to excuse the inordinate delay by asserting that the primary reasons therefor relate to the complexity of the issues, the covert circumstances from which they arise, and the repeated denials of all wrongdoing on the part of the State and those for whom it may be vicariously responsible. As these matters were then being investigated in the Moriarty Tribunal, it was therefore reasonable they say, to await developments before particularising their Statement of Claim.

59. The nature and value of the underlying asset, namely the licence; the identity of its owners, namely the State; and the importance of the decision to dispose of it, presumably in the public interest; were all matters which demanded the highest level of integrity in the process established for this purpose. The reputation of prized institutions of the State, indeed the State itself and at a more general level, its people, were at stake. This was clearly recognised by the Houses of the Oireachtas and by an Taoiseach in the establishment of the Moriarty Tribunal to investigate, as a matter of public concern, the allegations of impropriety then suspected. Such allegations in most material respects were the same as those the subject matter of the instant proceedings.

60. It cannot be denied but that the conduct alleged by the plaintiffs as amounting to, amongst other things, misfeasance in public office and contravention of the Prevention of Corruption Act, 1906, is, if found to be true, of the most grave and appalling kind which can be mounted against any public office. It is of necessity by its very nature cloaked with deceit and concealed with vigour. It was strenuously denied by the State defendants who repeatedly reasserted the integrity of the process and those involved in it. Was it therefore reasonable for the plaintiffs to defer movement of their actions whilst such an investigation was on-going? In my view they were so entitled.

61. The plaintiffs realise that they cannot utilise or otherwise rely on the conclusions reached by the Tribunal, at any level of evidential value. Rather, they are fully aware that they must prove any allegation pleaded, by admissible evidence reaching a standard of probability commensurate with the seriousness of such assertions. Whether they will do so, how they might do so and what the outcome might be, are all matters upon which I make no comment. The trial court is where such issues will be determined. What they seek to do however, is to use the material disclosed before the Tribunal as a foundation upon which such allegations would rest. They claim, in justification of the delay, that the essence of the Tribunal’s remit reflected what wrongdoing they had always felt existed, but the extent, nature and depth of which they could not be expected to unearth, even if full use was made of court procedure. They claim that a very significant intervention occurred in May, 2001 when the Tribunal publicly declared its intention to investigate the very matters of which they had complained. They rationalised that no such announcement would have been made unless, even at that stage, the Tribunal had some information which of course, they were not privy to. However, it offered support to their sense of grievance. Hence, the service of writs by both sets of plaintiffs.

62. In the hope or expectation that matters before the Tribunal could be concluded quickly, the writs were not served for almost one year. By that time it became clear that the public inquiry would take longer than originally expected, but no-one could foresee quite how long. Public sittings began in December 2002: they continued until 2010 with some significant periods of inactivity because of court challenges. Even with its extensive powers, it took the Tribunal many years to reach a conclusion on the issues. Such conclusions were, as is public knowledge, highly critical of the State defendants. Given the extraordinary nature of the background to these proceedings and the almost undoubted fact that the plaintiffs could never have progressed their actions without drawing on the Tribunal, I believe that they were entitled to have regard to the activity of this body, within the timeframe under discussion in this case.

63. For the following additional reasons I would hold that the delay complained of is excusatory:

      (i) the unique circumstances of the events preceding the allegations made: the seriousness and gravity of the claims involving fraud, corruption, deceit, and misfeasance in public office, which if established would bring shame on State institutions and the State itself;

      (ii) the covert nature of such activities; the manner of their concealment and disguise, to such a degree that the Houses of the Oireachtas and an Taoiseach saw fit to establish a Tribunal of Inquiry to look into such matters;

      (iii) the Tribunal, even with its extensive powers took a decade to unearth its findings: during its investigation it complained of a lack of cooperation from the relevant State defendants which can be considered unprecedented, given the constitutional position of institutions which established it. Such being the case, it would have been near, if not impossible for lay litigants, even maximising court procedure and having the funds to do so, to obtain sufficient information to particularise any claim;

      (iv) the complex and multi-faceted nature of the issues involved;

      (v) the activities underlining the allegations were almost exclusively known only by the defendants who it is alleged took part in an elaborate and deceitful cover-up to prevent the discovery of the true facts;

      (vi) the fact that Kelly J. refused to dismiss the Comcast proceedings in 2005 but instead permitted the delivery of a Statement of Claim, which took place in June of that year;

      (vii) the acceptance of that Statement of Claim without demur for a period of almost twelve months;

      (viii) the delay on the part of the State defendants in taking any step to compel progress of the proceedings;

      (ix) the absence of any prejudice of any specific nature, or even an assertion of such, in this regard;

      (x) the intense involvement of the State defendants in the Moriarty Tribunal; and

      (xi) the other factors as identified in this regard by the judgment of the Chief Justice and Hardiman J. which I gratefully adopt.

64. The State defendants complain that failure to take other steps open to the plaintiffs should weigh heavily against them. In this context they cite the procedure of applying for pre-Statement of Claim discovery. The taking of such a step in my view was an entirely unrealistic one, as borne out by the manner of the State’s participation before the Tribunal. It takes no imagination to feel the vigour of the defence which these defendants would mount to such an application. Noting that the plaintiffs were not in a position to even broadly particularise the claim, their chances of getting relief under this heading, against the likely intensity of the defendants’ opposition, can be classified as minimal. Moreover, one could not blame them for treating as pointless the possibility of a theoretical appeal from the refusal of their request made under the Freedom of Information Acts, 1997 – 2009.

65. The State defendants also rely on Desmond as indicating that the plaintiffs should have specifically informed them of their intention to hold off until the evidence unfolded at the Tribunal. In Desmond, on legal advice, the plaintiff took a deliberate decision to stand down from further progressing his action until the Moriarty Tribunal had investigated an aspect within its remit, relevant or at least potentially relevant, to such action. The Supreme Court held that his unilateral decision in this regard could not be excusatory of the inordinate delay which had occurred. At a very minimum it was considered that he should have notified the defendants of his intention so that they could decide how best to respond, if at all. Instead they were “lulled, by the inactivity of the [plaintiff] into the natural belief that the claim was abandoned”.

66. The instant case is entirely distinguishable from Desmond in a number of respects, including the fact that evidence of a potentially decisive nature was always available to the plaintiff, being that of himself, but more significantly because the State defendants were never “lulled” as M.G.N. was in Desmond. On the contrary, they were fully aware of the plaintiffs’ deep interest in the Moriarty Tribunal, as evidenced (i) by the fact that Persona’s legal representatives were in attendance virtually at all public sittings of the Tribunal and (ii) that when under cross-examination Mr. Tony Boyle, a director of the company, denied that he was using the Tribunal as a “kind of stalking horse” for his company’s civil proceedings. In fact he asserted that such an action would proceed irrespective of the Tribunal’s outcome.

67. There is one other aspect in this context which should be referred to: it is that conversation which I have recorded at paragraph 17(iv) supra. Because the circumstances in which it occurred lacked formality and because the conversation at best, can only been described as “casual”, I think it would be unfair to Mr. Shaw to infer that his silence amounted to acquiescence or the like, particularly when it is unclear if the sense of the overall occasion demanded a reply. On that basis I would not consider the exchange between solicitors as determinative, but happen, apparently it certainly did.

68. Aside altogether from the last point, there is an abundance of evidence which clearly shows that the proceedings as issued were at all stages, very much alive and were far from being discontinued or let expire. Therefore, in these circumstances any further consideration of the requirement identified in Desmond is not necessary, as its purpose in any event has been satisfied on the facts of this case.

69. For the above reasons I would allow the appeals of both Comcast and Persona in these proceedings.






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