Comcast International Holdings Incorporated v The Minister for Public Enterprise

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 01 November 2019
• Neutral Citation: [2019] IEHC 720
• Court: High Court
• Docket Number: [2001 No. 15119 P]
• Date: 01 November 2019

BETWEEN

COMCAST INTERNATIONAL HOLDINGS INCORPORATED, DECLAN GANLEY, GANLEY INTERNATIONAL LIMITED

AND

CGI LIMITED

PLAINTIFFS

AND

THE MINISTER FOR PUBLIC ENTERPRISE, MICHAEL LOWRY, ESAT TELECOMMUNICATIONS LIMITED, DENIS O’BRIEN, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2019] IEHC 720

Allen

[2001 No. 15119 P]

THE HIGH COURT

Discovery – Categories of documents – Orders for discovery – Plaintiffs seeking orders for discovery – Whether the High Court should make an order for discovery in the terms as proposed by the plaintiffs

Facts: The plaintiffs, Comcast International Holdings Inc., Mr Ganley, Ganley International Ltd and CGI Ltd, brought three motions seeking orders for discovery by the first, fifth and sixth defendants, the Minister for Public Enterprise, Ireland and the Attorney General (the State defendants), the second defendant, Mr Lowry, and the fourth defendant, Mr O’Brien. The plaintiffs sought discovery by the State defendants and by Mr Lowry of the same 22 categories of documents: (1) the competing tenders; (2) and (3) the tender process; (4) the cap on the licence fee; (5) extension of the date for tenders; (6) participation of the project group; (7) participation of Andersen Management International; (8) evaluation of tenders; (9) the qualifications of those involved in evaluation; (10) communications with Mr O’Brien and others; (11) the introduction of IIU Nominees to the consortium; (12) the decision to select Esat as the preferred bidder; (13) the licence award phase; (14) Electricity Supply Board; (15) – (21) the money trail; (22) investment of

Advent International in Communicorp. The plaintiffs sought discovery by Mr O’Brien of 24 categories, the first 22 of which were the same as those sought against the State defendants and Mr Lowry: (23) the commercial advantage arising from the award of the licence; (24) damage to Mr O’Brien’s reputation.

Held by the High Court (Allen J) that, concerning the State defendants, it would make an order for discovery in the terms as proposed by the plaintiffs, with the following exceptions: (2) and (3) “All documents relating to the design and/or drafting of the [request for proposals], and/or the Information Memorandum and/or the Supplemental Memorandum and/or the Second Supplemental Memorandum, and/or the Evaluation Model and/or the design and/or drafting of any amendments thereto”; (5) it would make an order for discovery of “all documents relating to the reasons for the amendment of the final date by which tender bids were to be lodged”; (6) it would make an order in the terms as proposed by the plaintiffs, save for subcategories (1), (2) and (3); (7) subcategories (1), (2) and (3) were not correct subcategories; (14) “all documents relating to contacts made by or on behalf of the Minister with the ESB prior to the final award of the licence on 6th May 1996 regarding whether or not Esat would be permitted to erect masts on ESB property”. Allen J held that he would make an order for discovery by Mr Lowry in the same terms as the order against the State defendants. Concerning Mr O’Brien, Allen J held that he would make an order for discovery in the terms as proposed by the plaintiffs, with the following exceptions: (5) “all documents relating to the reasons for the amendment of the final date by which tender bids were to be lodged”; (6) and (7) “all documents relating to communications between the project group or any member of the project group and the fourth named defendant and/or the Esat Digifone consortium and/or any other member of the Esat Digifone consortium” and “all documents relating to communications between AMI or any representative of AMI and the fourth named defendant and/or the Esat Digifone consortium and/or any other member of the Esat Digifone consortium”; (10) “all documents relating to communications relating to the tender process and/or to the award of the licence to Esat Digifone on 16th May, 1996 between the Minister and/or Department and the fourth defendant and/or the Esat Digifone consortium and/or any other member of the Esat Digifone consortium”; (11) “all documents relating to any meeting between the Minister and the fourth named defendant in September, 1995, relating to the entry of IIU into the Esat consortium such discovery to be limited to the period between the commencement of the competition and the date of the award of the licence”; (15) “all documents relating to the payment of US$50,000 on or about 29th December, 1995 by Telenor Invest AS to an offshore account operated by Mr. David Austin”; (16) “all documents in his possession, power or procurement relating to the deposit of the sum £147,000 into account number 023/01/01505 with Irish Nationwide (IOM)”; (21) absent any plea that Mr O’Brien made the payment, the plaintiffs’ reason falls apart; (22) “all documents relating to the accuracy of the representations made by Mr. O’Brien to the project group or AMI on 12th September, 1995”.

Allen J held that there would be orders for discovery in the terms indicated, he would hear counsel on what progress had been made in agreeing a confidentiality protocol and he would adjourn generally, with liberty to re-enter, the application for discovery by Mr O’Brien of documents in relation to the commercial advantage derived by Esat from the licence (Category 23), and the application for electronic inspection and searching facilities.

Discovery granted.

JUDGMENT of Mr. Justice Allen delivered on the 1st day of November, 2019

Introduction

1 This is a ruling on three motions brought on behalf of the plaintiffs seeking orders for discovery by the first, fifth and sixth defendants ( “the State defendants”), the second defendant (“Mr. Lowry”), and the fourth defendant (“Mr. O’Brien”). The action against the fourth defendant has been abandoned.

2 The action is complicated. The motions were complicated to begin with and were further complicated, after the initial exchange of affidavits and after the motions were first listed for hearing, by the decision of the Court of Appeal in Tobin v, Minister for Defence [2018] IECA 230. Since the hearing of the motions that additional complication has been dispelled by the decision of the Supreme Court in Tobin [2019] IESC 57.

3 Although detailed written submissions were filed there was not, in the end, much between the parties as to the principles of law generally applicable to motions for discovery. There was, however, extensive argument as to the applicability of some of those principles to these motions, and as to the application of such of the principles as are applicable.

Background

4 On 2nd March, 1995 the then Minister for Transport, Energy and Communications, Mr. Michael Lowry T.D., announced a bid process for the award of the second GSM Mobile phone licence in Ireland.

5 A very complicated tender process was put in place. That process was divided into two phases. The object of the first phase, which has been referred to as the evaluation phase, was to select from among those who might bid for the licence the winning tender. The object of the second phase, which has been referred to as the licence award phase, was, as it was put, the interrogation of the winning bid and the making of a final decision as to the award of the licence.

6 The first phase saw the establishment of a project group; the development of an evaluation model; the advertisement for requests for proposals, which were required to address the prescribed evaluation criteria; and the appointment of external consultants, Andersen Management International (“AMI”) to conduct an evaluation of the tenders. The evaluation criteria were weighted, and proposals were to have been subjected to qualitative and quantitative evaluation. An information memorandum which was circulated at the start of the process was twice supplemented. The evaluation model was twice amended.

7 The declared object of this process was that it should be impermeable to political influence.

8 What was called the evaluation model was developed and amended during the evaluation phase and the model was eventually finalised on 27th July, 1995.

9 There were six tenderers or bidders for the licence, including a consortium called the Cellstar Group, with which the plaintiffs were associated, and Esat Digifone (“ Esat“), with which Mr. Denis O’Brien, through a company of which he was the principal shareholder, Communicorp Group Limited (” Communicorp), was associated.

10 On 25th October, 1995 the Minister announced that the second GSM mobile telephony licence would be awarded to the Esat Digicom Consortium.

11 On 6th May, 1996, at the end of the licence award phase, the licence was awarded to Esat Telecommunications Limited.

The plaintiffs’ claims

12 The plaintiffs’ claim is that the tender process was compromised and corrupted by Mr. Lowry, as the Minister, meeting with the bidders; advising or making suggestions to Esat Digifone, specifically Mr. O’Brien; disclosing to Mr. O’Brien important changes that would be made to the evaluation criteria; by the imposition of a cap of IR£15 million on the licence fee; by extending the closing date for receipt of tenders; by side-lining the project group; by intervening with the ESB to ensure that Esat would be permitted to erect masts on ESB pylons; and otherwise in a number of ways by interfering with the evaluation process to ensure that Esat Digifone would emerge as the successful bidder.

13 The plaintiffs allege that during the licence award phase, the Minister ignored the fact that ownership of Esat had changed since its tender was submitted; failed to give any consideration to the allegedly precarious financial state of Communicorp; and conducted the negotiations in the licence award phase on the basis that the licence would inevitably be awarded to Esat.

14 The plaintiffs’ case is that Mr. O’Brien made, and Mr. Lowry accepted, a number of...