Comcast International Holdings Inc. v Minister for Public Enterprise

• Jurisdiction: Ireland
• Judge: Gilligan J.
• Judgment Date: 13 June 2007
• Neutral Citation: [2007] IEHC 297
• Court: High Court
• Date: 13 June 2007

[2007] IEHC 297

THE HIGH COURT

[No. 9288 P/2001]

[No. 15119 P/2001]

[No. 9223 P/2001]

COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE & ORS

BETWEEN

COMCAST INTERNATIONAL HOLDINGS INC., DECLAN GANLEY, GANLEY INTERNATIONAL LIMITED AND GCI LIMITED

PLAINTIFFS

AND

THE MINISTER FOR PUBLIC ENTERPRISE, MICHAEL LOWRY, ESAT TELECOMMUNICATIONS LIMITED, DENIS O'BRIEN, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

BETWEEN

COMCAST INTERNATIONAL HOLDINGS INC., DECLAN GANLEY, GANLEY INTERNATIONAL LIMITED AND GCI LIMITED

PLAINTIFFS

AND

THE MINISTER FOR PUBLIC ENTERPRISE, MICHAEL LOWRY, ESAT TELECOMMUNICATIONS LIMITED, DENIS O'BRIEN, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

BETWEEN

PERSONA DIGITAL TELEPHONY LIMITED AND SIGMA WIRELESS NETWORKS LIMITED

PLAINTIFFS

AND

THE MINISTER FOR PUBLIC ENTERPRISE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

PREVENTION OF CORRUPTION ACT 1906

FREEDOM OF INFORMATION ACT 1997

MORIARTY REPORT OF THE TRIBUNAL ON PAYMENTS TO POLITICIANS & RELATED MATTERS 2006 PART I

LAWLOR v FLOOD 1999 3 IR 107

STATUTE OF LIMITATIONS 1957

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

O'C (J) v DPP 2000 3 IR 478

GILROY v FLYNN 2005 1 ILRM 290

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

BYRNE v MIN DEFENCE, IRELAND & AG 2005 1 IR 577

O'DOMHNAILL v MERRICK 1984 IR 151

TOAL v DUIGNAN & ORS (NO 1) 1991 ILRM 135

TOAL v DUIGNAN (NO 2) 1991 ILRM 140

KELLY v O'LEARY 2001 2 IR 526

MANNING v BENSON & HEDGES LTD 2004 3 IR 556 2005 1 ILRM 190

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

MCMULLEN v IRELAND UNREP ECHR 29/07/04

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

PRACTICE AND PROCEDURE

Dismiss claim

Inordinate and inexcusable delay - Inherent jurisdiction - Interests of justice - Factors relevant to consideration of balance of justice - Degree of delay - Excuse tendered - Prejudice - Inaction or delay by defendant - Commercial proceedings - Conditions now prevailing - Greater obligations of expedition - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 applied; Lawlor v Flood [1999] 3 IR 107 considered; Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290, Stephens v Paul Flynn Ltd [2005] IEHC 148, (Unrep, Clarke J, 28/4/2005) and Manning v Benson and Hedges Ltd. [2004] IEHC 316, [2004] 3 IR 556 followed -European Convention on Human Rights Act 2003 (No 20), s 2 - European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 6 - Claim against State defendants dismissed (2001/9223P, 9288P & 15119P - Gilligan J - 13/6/2007) [2007] IEHC 297

Comcast International Holding Inc v Minister for Public Enterprise

the plaintiffs brought proceedings alleging corruption, misfeasance in public office, fraud and deceit against the state defendants in connection with the 1995 decision to award a mobile phone licence to the other defendants in preference to the plaintiffs’ application. The state defendants brought a motion seeking to have the plaintiffs’ claims against them dismissed pursuant to the inherent jurisdiction of the court on the grounds of delay and want of prosecution and in the interest of justice. The plaintiffs submitted, inter alia, as a reason for the delay, the fact that they were awaiting the outcome of the inquiries in the Moriarity Tribunal before proceeding with the High Court action.

Held by Mr Justice Gilligan in dismissing the plaintiffs’ claims as against the state defendants, 1,

that the inquisitorial inquiry before the Moriarty Tribunal could have no bearing on the outcome of the within proceedings in the High Court and failed to excuse the delay.

2. that the factors to be considered in exercising the inherent jurisdiction of the court to dismiss were:

(a) whether the defendant contributed to the lapse of time;

(b) the nature of the claims;

(c) the probable issues to be determined, in particular whether there would be factual issues or only legal issues;

(d) the nature of the principal evidence, in particular whether there would be oral evidence;

(e) the availability of relevant witnesses;

(f) the length of the lapse of time and in particular the length of time between the acts or omissions in relation to which the court would be asked to make factual determinations and the probable trial date.

3. That the delay was both inordinate and inexcusable.

4. that where:-

(a) the responsibility for inordinate and inexcusable delay rested primarily with the plaintiff;

(b) there was presumed prejudice of a moderate nature;

(c) the issues to be determined were of a substantial commercial nature;

(d) the actions leading to the delay involved were deliberate and conscious;

(e) the prospects of a fair trial had been undermined;

(f) the plaintiff had failed after a late start to advance the proceedings expeditiously;

the balance of justice favoured the dismissal of the proceedings

5. that the European Convention on Human Rights was an extra factor to be added into consideration subject to the application of existing Irish law and jurisprudence.

Reporter: P.C.

1 JUDGMENT delivered on the 13th day of June, 2007, by Gilligan J.

2 These three sets of proceedings arise from the first named defendant's decision on October 25th, 1995, to award the second GSM mobile telephone licence to ESAT and involve serious allegations including corruption, misfeasance in public office, fraud, and deceit.

3 The background to all three sets of proceedings is such that, on or about the 2nd March, 1995, the then Minister for Public Enterprise, Michael Lowry (hereinafter referred to as 'the Minister'), announced a bid process for the award of the second GSM mobile phone licence (hereinafter referred to as 'the licence') in Ireland. The deadline for receipt of tenders was extended on 16th June, 1995, and the result of the competition was announced on 25th October, 1995, awarding the second GSM mobile telephone licence to ESAT Telecommunications Limited.

4 The first set of proceedings bearing Record No. 2001 No. 9288 P centre on the decision of the Minister as taken on 16th June, 1995, to extend the deadline of the 23rd June, 1995, for the receipt of tenders for the award of the second GSM mobile telephone licence and the proceedings seek a declaration that the decision is null and void and of no effect and, in addition, claim damages for breach of statutory duty, misfeasance in public office, breach of or procuring a breach of the Prevention of Corruption Act, 1906, fraud, deceit, breach of duty and breach of contract.

5 The plaintiffs in the first set of proceedings were party to a joint venture agreement entered into with Raidió Teilifís Éireann and Bord na Móna who submitted a tender for the licence on or about the 4th August, 2005, under the name "the Cellstar Group".

6 The plaintiffs issued these proceedings by way of a plenary summons on 15th June, 2001, but delayed in service of the plenary summons until 14th June, 2002. An appearance was entered on behalf of all defendants on 20th June, 2002, and a statement of claim was not delivered until the 3rd June, 2005.

7 In the second set of proceedings involving Comcast and bearing Record No. 2001 No. 15119 P the plaintiffs allege that the Minister compromised the integrity of the tender process by breaching the guidelines for communications with bidders, disclosed or caused to be disclosed confidential information in relation to the bid process to ESAT, modified the terms and unlawfully interfered with the tender process to favour ESAT and 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.

8 The plaintiffs claim a declaration that the decision as announced on October 25th, 1995, to award the second GSM mobile telephone licence to ESAT is unlawful, null and void and of no effect and claim damages for breach of statutory duty, misfeasance in public office, breach of or procuring a breach of the Prevention of Corruption Act, 1906, fraud, deceit, breach of duty and breach of contract.

9 The second set of proceedings was commenced by way of the issue of a plenary summons on the 10th October, 2001, which was not served until 4th October, 2002. An appearance was entered on behalf of the defendants on 16th December, 2002, and a statement of claim was not served until 3rd June, 2005.

10 The third set of proceedings involve Persona Digital Telephony Limited and Sigma Wireless Networks Limited as plaintiffs and bear the Record No. 2001 No. 9223 P. The plaintiffs allege against the defendants, through the first named defendant, breach of contract, deceit, conspiracy, breach of duty of care, misfeasance in public office, and dishonest assistance. The plaintiffs claim damages including exemplary damages.

11 The third set of proceedings was commenced by way of the issue of a plenary summons on 15th June, 2001, which summons was not served until 10th June, 2002. An appearance was entered on behalf of the defendants on 20th June, 2002, and a statement of claim was delivered on 21st April, 2006.

12 The State defendants by way of a notice of motion as dated 26th May, 2006, bring this application which seeks:-

13 1. An Order pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the State defendants for delay and/or want of prosecution.

14 2. An Order pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the State defendants in the...