Persona Digital Telephony Ltd and Another v Minister for Public Enterprise and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] IEHC 78
• Court: High Court
• Date: 21 February 2014

[2014] IEHC 78

THE HIGH COURT

[No. 9223 P./2001]

Persona Digital Telephony Ltd & Sigma Wireless Networks Ltd v Min For Public Enterprise & Ors

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

PERSONA DIGITAL TELEPHONY LIMITED AND SIGMA WIRELESS NETWORKS LIMITED

PLAINTIFFS

AND

THE MINISTER FOR PUBLIC ENTERPRISE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

MICHAEL LOWRY AND DENIS O'BRIEN

THIRD PARTIES

RSC O.15 r13

FINCORIZ SAS v ANSBACHER & CO LTD UNREP LYNCH 20.3.1987 1987/2/592 1987 IEHC 19

AMON v RAPHAEL TUCK & SONS LTD 1956 1 AER 273 1956 1 QB 357 1956 2 WLR 372 1956 RPC 29

BARLOW & ORS v FANNING & UNIVERSITY COLLEGE CORK 2002 2 IR 593 2003 1 ILRM 29 2002/3/572 2002 IESC 53

VANDERVELL TRUSTEES LTD v WHITE 1970 3 AER 16 1970 1971 AC 912 3 WLR 452

DUIGNAN v DUDGEON & ORS UNREP KELLY 14.10.2005 2005/17/3437 2005 IEHC 348

COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE SUPREME 17.10.2012 2012/7/1702 2012 IESC 50

Practice and procedure - Joining party - Interests of justice - Presence - Bribery claims - Moriarty Tribunal - Necessity to sue-Assisting Court - Order 15 rule 13 RSC

Facts: The plaintiffs sought damages arising out of the State”s awarding of a second GSM licence to ESAT Digifone. The Court considered whether Mr. Denis O” Brien was a party who ought to have been joined and whether his presence was necessary to enable the Court to effectually and completely adjudicate all questions in the case. The Court considered the nature of the case of the plaintiffs and whether the tests in Order 15 rule 13 RSC had been made out, as to the interests of justice.

Held by Ryan J. that the applicant was entitled to be joined as a co-defendant as it was required in the interests of justice. It was not an act of indulgence. If the plaintiffs did not wish to sue him that was a decision open to then.

1 JUDGMENT of Mr. Justice Ryan delivered the 21st February, 2014

Introduction

2 1. This case is one of two that are proceeding towards being heard in this Court in which the plaintiffs seek damages and other reliefs arising out of the awarding of the State's second GSM phone licence to ESAT Digifone in 1996. The plaintiffs in the other case were some of the members of a consortium that entered the competition for the licence. The first plaintiff in this case, Persona, was also an applicant. The actions have many features in common, as well as some differences. They were together the subject of a judgment of this court in an application by the State defendants to strike them out on the ground of inordinate and inexcusable delay. The appeal to the Supreme Court was dealt with in composite form also and judgments were delivered under the titles of the two cases on the 17 ^th October, 2012.

3 2. A feature of the applications before this Court and the Supreme Court was that the plaintiffs maintained that they were justified in holding back their proceedings while the Moriarty Tribunal investigated. That body had been set up to investigate urgent matters of public importance, to wit, payments allegedly made to politicians who included the Minister at the Department in charge of the GSM licence competition, Mr. Lowry. One of the topics explored at length in the Tribunal was the award of the GSM licence to ESAT. The Tribunal is referred to in the replying affidavit in this motion sworn by Mr. Boyle in opposition. The report is quoted in the Supreme Court judgments in the litigation above mentioned and I will refer to some of those citations later.

4 3. One of the differences between the cases is that the plaintiffs in the instant action have chosen to sue State defendants only, namely, the Minister for Public Enterprise, Ireland and the Attorney General. Unlike the other case, these plaintiffs have not sued ESAT Digifone and Mr. Denis O'Brien and neither have they named Mr. Lowry personally as a defendant. The plaintiffs say that they made a deliberate choice in that regard.

5 4. The State defendants successfully applied to join Mr. Lowry and Mr. O'Brien as third parties. Mr. O'Brien's solicitor, Mr. Meagher, later wrote to the plaintiffs' solicitors and the Chief State Solicitor asking for their consent to his client's being joined as a defendant, so altering his status in the litigation. The State consented, but the plaintiffs refused.

6 5. Then Mr. Meagher wrote a detailed letter on the 3 ^rd May, 2013, in which he recited the fact that his client had been made a third party and set out the reasons why Mr. O'Brien should be made a defendant instead. The State gave formal consent by letter of the 14 ^th June, 2013, but, somewhat surprisingly for this kind of litigation, the plaintiffs' solicitors simply did not reply, not even to acknowledge the correspondence.

The Rule

7 6. This motion was issued by notice dated the 2 ^nd July, 2013. The application is brought under O. 15, r. 13, of the Rules of the Superior Courts ("RSC") which provide as follows:-

"No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a summons or notice in manner hereinafter mentioned, or in such other manner as the Court may direct, and the proceeding as against such party shall be deemed to have begun only on the making of the order adding such party."

8 7. Order 15, rule 13 gives the courts power to join a party as plaintiff or defendant in two situations. First, there is a party "who ought to have been joined" and, secondly, where the party's presence before the court is necessary to enable the court to decide all the questions in the case effectually and completely. The first of these powers is invoked by Mr. O'Brien in regard to the conspiracy claim. Mr. O'Callaghan S.C., on behalf of Mr. O'Brien, the applicant, makes the point that it is acceptable practice to plead that a defendant conspired with persons unknown, when the identity of the other wrongdoers is not known to the plaintiff, but he submits that it is not acceptable to do that when the plaintiff knows the identity of the person he is accusing. On this test the question is:

"Is Denis O'Brien a party who ought to have been joined as a defendant?"

9 When the other limb of the rule is reduced to its essential elements so far as relevant to the motion, the question can be stated thus:-

"Is Denis O'Brien's presence before the court necessary to enable the court effectually and completely to adjudicate on all the questions in the case?"

The Law

10 8. There is little disagreement between the parties as to the legal test to be applied under the rule. However, Mr. McEnroy S.C. for the plaintiffs, argues for an interpretation of the provision in light of constitutional rights as to litigation. The rule gives the court the power to join a party as a defendant or as a plaintiff at any stage of the proceedings and "either upon or without the application of either party, and on such terms as may appear to the court to be just", so the consent of a plaintiff to joining a defendant is not a necessary precondition. However, an application to join a defendant against the wishes of a plaintiff will only be granted in exceptional circumstances. There is a clear exposition of this principle in Fincoriz SAS v. Ansbacher Limited [1987] IEHC 19, where Lynch J. said that:-

"Prima facie a plaintiff is entitled to sue whomsoever he wishes and is entitled not to have to sue a person that he does not wish to sue."

11 He also said:-

"In order that a person may be joined as a defendant without the consent and, a fortiori, against the wishes of the plaintiff there must be some exceptional circumstances."

12 The exceptional circumstances are that it is necessary to enable the court effectually and completely to adjudicate all the questions in the case, such necessity being established as a matter of probability, as Lynch J. held.

13 9. In Amon v. Raphael Tuck & Sons Ltd [1956] 1 Q.B. 357 Devlin J. (as he then was), said at p. 371 in a passage that has been endorsed in this jurisdiction and in England that the test is:-

14 '"May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal right?' It is not, on this view, enough that the plaintiff's rights and the rights which the intervener wishes to assert should be connected with the same subject-matter. Nor is it enough that the intervener's commercial interests may be affected by an order made in the action."

15 Devlin J also said at pp. 386 - 387:-

"The construction of the rule is, and must be, the same in all circumstances; but the test that is appropriate to determine whether a party is necessary or not may vary according to the circumstances."

16 10. In Barlow & Others v. Fanning and UCC [2002] 2 I.R. 593, the plaintiffs originally sued the first defendant but subsequently served notice of discontinuance against...