Comcast International Holdings Incorporated & Others v Minister for Public Enterprise & Others [2012] IESC 50

• Jurisdiction: Ireland
• Judge: Denham C.J.,Mr. Justice Hardiman,Mr. Justice William M. McKechnie,Mr. Justice Clarke,Mr. Justice Fennelly
• Judgment Date: 17 October 2012
• Neutral Citation: [2012] IESC 50
• Court: Supreme Court
• Date: 17 October 2012

Comcast International Holdings Inc & Ors v Min for Public Enterprise & Ors

Between/

Comcast International Holdings Incorporated, Decian 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

Comcast International Holdings Inc & Ors v Min for Public Enterprise & Ors

Persona Digital Telephony Limited, and Sigma Wireless Networks Limited

and

Minister for Public Enterprise, Ireland and the Attorney General

[2012] IESC 50

Denham C.J.

Hardiman J.

Fennelly J.

McKechnie J.

Clarke J.

Appeals No. 216, 215 and 213

[High Court Record No. No. 9288P/2001]

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

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

215 & 216/07 and 213/07

THE SUPREME COURT

PRACTICE AND PROCEDURE

Delay

Motion to dismiss for delay and/or want of prosecution - Principles to be applied - Three proceedings taken against respondent - Plenary summons issued in all proceedings in 2001 - Decision to await conclusion of investigative stage of Moriarty Tribunal before delivering statement of claims - Whether delay inordinate - Whether excusable - Whether interests of justice to dismiss - Nature of civil proceedings - Distinction between civil proceedings and public statutory procedure - Abuse of process - Consent to late delivery of statement of Claim in second proceedings - Statement of claim delivered within period of consent - Whether motion to dismiss thereafter abuse of process - Whether real risk of unfair trial - O'Domhnaill v Merrick [1984] IR 151; Toal v Duignan (No 1) [1991] ILRM 135; Toal v Duignan (No 2) [1991] ILRM 140; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459; Price and Lowe v United Kingdom (Apps nos 43185/98 and 43186/98) (2002) 35 EHRR CD 316; Cosgrave v Director of Public Prosecutions [2012] IESC 24, (Unrep, SC, 26/4/2012); Kennedy v Director of Public Prosecutions [2012] IESC 34, (Unrep, SC, 7/6/2012); Grant v Roche Products (Ireland) Ltd [2008] IESC 35, [2008] 4 IR 679; Meskell v Coras Iompair Éireann [1973] IR 121; Hanrahan v Merk Sharpe and Dohme (Ireland) Ltd [1988] ILRM 629; Stephens v Paul Flynn Ltd [2005] IEHC 148, (Unrep, Clarke J, 28/4/2005); Desmond v MGN Ltd [2008] IESC 56, [2009] 1 IR 737; Hogan v Jones [1994] 1 ILRM 512; J O'C v Director of Public Prosecutions [2000] 3 IR 478; Rainsford v Limerick Corporation [1995] 2 ILRM 561; Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR 510; Guerin v Guerin [1992] 2 IR 287; Dowd v Kerry County Council [1970] IR 27; Calvert v Stollznow [1980] 2 NSWLR 749; Celtic Ceramics Ltd v Industrial Development Authority [1993] ILRM 248, (Unrep, SC, 4/2/1993); Manning v Benson and Hedges Ltd [2004] IEHC 316, [2004] 3 IR 556; Donnellan v Westport Textiles Limited (In Voluntary Liquidation) [2011] IEHC 11, (Unrep, Hogan J, 18/1/2011); McIlkenny v Chief Constable [1980] QB 283; Smyth v Tunney [2009] IESC 5, [2009] 3 IR 322; Stephens v Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 31; Rodenhuis and Verloop BV v HDS Energy Ltd [2010] IEHC 465, [2011] 1 IR 611 and Birkett v James [1978] AC 297 approved - McMullen v Ireland (App no 42297/98, 29/7/2004); Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM 290; Kategrove Ltd (In Receivership, Hugo Merry and Peter Schofield) v Anglo Irish Bank Corporation plc [2006] IEHC 210, (Unrep, Clarke J, 5/7/2005) and McBrearty v North Western Health Board [2010] IESC 27, (Unrep, SC, 10/5/2010) considered - Rogers v Michelin Tyre Plc [2005] IEHC 294 (Unrep, Clarke J, 28/6/2005); Doe v Armour Pharmaceutical Co Inc [1994] 3 IR 78 and Collins v Dublin Bus (Unrep, SC, 22nd October, 1999) distinguished - Rules of the Superior Courts 1986 (SI 15/1986), Os 20, 27, 36, 108 and 122 - European Communities (Mobiles and Personal Communications) Regulations 1996 (SI 123/1996) - Tribunals of Inquiry (Evidence) Acts 1921 and 1979 (No 2) Order 1997 - Prevention of Corruption Act 1906 (6 Edw 7 c 34) - Freedom of Information Acts 1997 to 2009 - Constitution of Ireland 1937, Art 40.3 - European Convention on Human Rights 1950, article 6 - Appeals allowed (213, 215 and 216/2007 - SC - 17/10/2012) [2012] IESC 50

Comcast International Holdings Inc v Minister for Public Enterprise

Facts: The facts in the proceedings turned on the matters investigated by the Moriarty Tribunal ("the Tribunal"). In short, the Tribunal strongly condemned the conduct of the responsible minister in interfering with the process of reaching a decision, as well as the decision itself, on the award of mobile telephone licences in 1995.

The appellants had brought proceedings seeking damages and/or remedies in relation to the tender process, which were brought before the High Court. In response to motions brought by the State, the High Court dismissed the claims for inordinate and inexcusable delay in pursuing the claims. The appellants now sough to appeal to the Supreme Court.

Held by Denham CJ, that the appellants could be held to have conceded that the delay was inordinate, but did not concede the delay was inexcusable. The matters for the Court to determine were whether the delay was in fact excusable, and whether the judge at first instance was correct in determining the balance of the interests of justice required the dismissal of the appellants' claim. Further, the Court had to determine whether the interests of justice permitted the claim to be dismissed.

Denham CJ held the earlier case of Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 accurately stated the law to be applied in cases where an application to dismiss the claim for want for prosecution was made. The European Court of Human Rights' decision in Price and Lowe v United Kingdom Application No 43185/98 was also relevant. Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 and Price and Lowe v United Kingdom Application No 43185/98 considered.

Denham CJ considered the grave nature of the corruption alleged by the appellants to be clearly relevant. This corruption was the subject matter of the Tribunal. The appellants had decided to delay in the matter because of the activity in the Tribunal. Looking at the evidence, it appeared there was at least a de facto consent or acquiescence by the State to the delay in the matter. Denham CJ therefore considered the interests of justice permitted the delay in this matter to be considered excusable.

The other Justices handed down individual judgments in the matter, but concurred in the decision to allow the appeals and refer the matter back to the High Court.

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

O'DOMHNAILL v MERRICK 1984 IR 151

TOAL v DUIGNAN (NO.1) 1991 ILRM 135

TOAL v DUIGNAN (NO.2) 1991 ILRM 140

MCMULLEN v IRELAND UNREP ECHR 29.7.2004 APPLICATION NO 42297/98

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

PRICE & LOWE v UK ECHR 29.7.2003 APPLICATION NO 43185/98 & 43186/98

COSGRAVE v DPP UNREP SUPREME 26.4.2012 2012 IESC 24

KENNEDY v DPP UNREP SUPREME 7.6.2012 2012 IESC 34

GRANT v ROCHE PRODUCTS (IRELAND) LTD 2008 4 IR 679

CONSTITUTION ART 40.3

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2008 2005/56/11682 2005 IEHC 148

DESMOND v MGN LTD 2009 1 IR 737

HOGAN v JONES 1994 1 ILRM 512

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

EEC REC 87/371

RSC O.27 r1

RSC O.122 r11

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

ANGLO IRISH BEEF PROCESSORS LTD v MONTGOMERY 2002 3 IR 510

GILROY v FLYNN 2005 1 ILRM 290

RULES OF THE SUPERIOR COURTS (ORDER 27 (AMDT) RULES) SI 63/2004

ROGERS v MICHELIN TYRE PLC & MICHELIN PENSIONS TRUST (NO.2) LTD UNREP CLARKE 28.6.2005 2005/53/11045 2005 IEHC 294

KATEGROVE LTD (IN RECEIVERSHIP) & ORS v ANGLO IRISH BANK CORPORATION PLC & O'BRIEN UNREP CLARKE 5.7.2006 2006/31/6555 2006 IEHC 210

MCBREARTY & ORS v NORTH WESTERN HEALTH BOARD & ORS UNREP SUPREME 10.5.2010 2010/31/7749 2010 IESC 27

GUERIN v GUERIN 1992 2 IR 287

DOWD v KERRY CO COUNCIL 1970 IR 27

RSC O.36 r12

HOGAN & ORS v JONES & ORS 1994 1 ILRM 512

CALVERT v STOLLZNOW 1980 2 NSWLR 749

CELTIC CERAMICS LTD v IDA 1993 ILRM 248

MANNING v BENSON & HEDGES LTD 2005 1 ILRM 190

DONNELLAN v WESTPORT TEXTILES LTD (IN VOLUNTARY LIQUIDATION) & ORS UNREP HOGAN 18.1.2011 2011/14/3448 2011 IEHC 11

RSC O.20 r3

RSC O.27 r1A(3)

HUNTER v CHIEF CONSTABLE OF WEST MIDLANDS & ANOR 1981 3 AER 727

SMYTH v TUNNEY & ORS 2009 3 IR 322

RODENHUIS & VERLOOP BV v HDS ENERGY LTD 2011 1 IR 611

BIRKETT v JAMES 1977 2 AER 801

DOE v ARMOUR PHARMACEUTICAL COMPANY INC 1994 3 IR 78

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED PARA 15-73

COLLINS v BUS ATHA CLIATH (DUBLIN BUS) & BUS EIREANN/IRISH BUS UNREP SUPREME 22.10.1999 1999/5/1062

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

2 JUDGMENTS DELIVERED BY ALL MEMBERS OF THE COURT

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

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

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

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

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