Persona Digital Telephony Ltd v Minister for Public Enterprise

• Jurisdiction: Ireland
• Judge: Ms. Justice Pilkington
• Judgment Date: 08 May 2019
• Neutral Citation: [2019] IEHC 295
• Docket Number: [2001 No. 9223 P.]
• Court: High Court
• Date: 08 May 2019

[2019] IEHC 295

THE HIGH COURT

Pilkington J.

[2001 No. 9223 P.]

BETWEEN

PERSONA DIGITAL TELEPHONY LIMITED

AND

SIGMA WIRELESS NETWORKS LIMITED

PLAINTIFFS

AND

MINISTER FOR PUBLIC ENTERPRISE, IRELAND, ATTORNEY GENERAL

AND

DENIS O'BRIEN

DEFENDANTS

AND

MICHAEL LOWRY

THIRD PARTY

Statement of claim – Amendment – Damages – Plaintiffs seeking leave to amend its statement of claim – Whether an amendment would be required

Facts: The plaintiffs, Persona Digital Telephony Ltd and Sigma Wireless Networks Ltd (Persona), pursuant to RSC Order 28, applied to the High Court seeking leave to amend its statement of claim delivered on 21 April 2006 together with certain other consequential orders and reliefs. The circumstances of the case concerned the award of the State’s second GSM mobile telephone licence to Esat Digifone (Esat Telecommunications Ltd) in 1996. Persona was a losing competitor for the bid (the second plaintiff being one of a number of companies within the Persona consortium). The grant or award of the licence to Esat Digifone generated significant controversy and the plaintiffs sought damages, including exemplary damages for breach of duty, including statutory duty, breach of contract, misfeasance in public office, breach of legitimate expectation, breach of constitutional rights, deceit, conspiracy, misrepresentation, dishonest assistance, breach of the rights of the plaintiffs and each of them, together with other reliefs arising out of the awarding of the licence to Esat Digifone.

Held by Pilkington J that, as it appeared that no amended statement of claim had been served consequent upon the joinder of the fourth defendant, Mr O’Brien, an amendment would be required. In Pilkington J’s view, given that the unamended statement of claim had been served on the State defendants, this matter could therefore proceed to a hearing on foot of that pleading and it was preferable, on balance, that all of the issues should be placed before the court in order that all matters regarding this litigation could be dealt with. Pilkington J held that this was the court’s overriding consideration upon the unique facts and circumstances of this case.

Pilkington J held that she would grant the relief sought by the plaintiffs in its notice of motion and permit it to amend its statement of claim delivered on 21 April 2006.

Relief granted.

JUDGMENT of Ms. Justice Pilkington delivered on the 8th day of May, 2019

1 This is an application by the plaintiffs (“Persona”) pursuant to RSC Order 28 seeking leave to amend its statement of claim delivered on 21 April 2006 together with certain other consequential orders and reliefs.

2 The circumstances of this case concern the award of the State's second GSM mobile telephone licence to Esat Digifone (Esat Telecommunications Limited) in 1996. Persona was a losing competitor for the bid (the second named plaintiff being one of a number of companies within the Persona consortium). The grant or award of the licence to Esat Digifone generated significant controversy and the plaintiffs within these existing proceedings seeks damages, including exemplary damages for breach of duty, including statutory duty, breach of contract, misfeasance in public office, breach of legitimate expectation, breach of constitutional rights, deceit, conspiracy, misrepresentation, dishonest assistance, breach of the rights of the plaintiffs and each of them, together with other reliefs arising out of the awarding of the licence to Esat Digifone.

3 Another unsuccessful applicant for the licence has also issued proceedings styled “The High Court record No 2001/9288P Between Comcast International Holdings Incorporated, 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” (“the Comcast proceedings”). For a period of time these two sets of proceedings were dealt with collectively and the initial judgments of the Courts reflect this.

4 The chronology of this matter is important to the present application and requires to be set out in some detail. It is as follows: -

a) 15 June, 2001; Persona issues the above entitled proceedings. The Comcast proceedings are also issued on the same day.

b) December, 2002; the tribunal of inquiry known as the Moriarty Tribunal begins public hearings.

c) March, 2006; Persona files a notice of change of solicitor.

d) 21 April, 2006; arising from correspondence from the first to third named defendants (“the State defendants”) threaten a motion to strike out proceedings for want of prosecution, thereafter Persona delivers its statement of claim within the timeline sought by those defendants.

e) 26 May, 2006; the State defendants issue a motion to strike out the Persona (and Comcast) proceedings for want of prosecution.

f) 13 July, 2007; by order of Gilligan J. the Persona and Comcast proceedings were struck out for want of prosecution ( Comcast International Holdings Inc & Ors. v. Minister for Public Enterprise & Ors. [2007] IEHC 297).

g) 22 March, 2011; the Moriarty Tribunal reports on the GSM licence process.

h) 17 July, 2012; the Supreme Court allows the appeals of Persona and Comcast from the order of Gilligan J. and delivers its written judgment on 17 October, 2012 ( Comcast International Holdings Inc & Ors. v. Minister for Public Enterprise & Ors. [2012] IESC 50).

i) 18 February, 2013; the State defendants obtain an order joining Michael Lowry and Denis O'Brien as third parties to the above entitled proceedings.

j) 19 February, 2013; the State defendants deliver a notice for particulars.

k) 2 July, 2013; a motion is issued on behalf of Denis O'Brien seeking to be joined as a co-defendant to the above entitled proceedings.

l) 21 February, 2014; Ryan J. orders that Denis O'Brien be joined as a co-defendant ( Personal Digital Telephony Limited & Ors. v. The Minister for Public Enterprise & Ors. [2014] IEHC 78).

m) 6 November, 2014; Persona serves a notice of a change of solicitor together with a letter which states, inter alia, that it will be seeking directions regarding third party funding and will also serve an amended pleading.

n) 20 March, 2015; Persona issues a motion seeking declaratory reliefs that, in entering into a proposed litigation funding arrangement, such actions did not constitute an abuse of process and/or were not contravening rules on maintenance and champerty (“the third party funding arrangements”).

o) 20 April, 2016; Donnelly J. refuses the reliefs sought by the plaintiffs holding that third party funding arrangements cannot be viewed as being consistent with public policy in this jurisdiction, that maintenance and champerty remain as torts and offences within it ( Personal Digital Telephony Limited & Ors. v. The Minister for Public Enterprise & Ors. [2016] IEHC 187).

p) 23 May, 2017; following the plaintiffs” being granted leave to appeal to the Supreme Court, that appeal is dismissed ( Personal Digital Telephony Limited & Ors. v. The Minister for Public Enterprise & Ors. [2017] IESC 27).

q) 15 February, 2018; the plaintiffs” solicitors furnish an amended statement of claim and seek the consent of the other parties to its delivery. The solicitors for the fourth named defendant refuse consent, the State defendants refusal of consent is received after this motion issues.

r) 1 June, 2018; the plaintiffs issue this motion.

5 In my view the chronology can be divided as follows;

a) The first time period is from Persona issuing its proceedings in 2001 up to the institution of the strike out proceedings by the State defendants in May 2006.

b) The second is the time dealing with that strike out application from 2006 up to the decision of the Supreme Court to uphold the appeal against the decision of Gilligan J., notified in July 2012 with judgment delivered on the 17th of October, 2012. In the interim the Moriarty Tribunal had delivered its report in 2011.

c) The third begins in 2013 with the application for the joinder of Messrs O'Brien and Lowry as third parties and the application thereafter by Mr. O'Brien seeking to be joined as a co-defendant culminating in the judgment of Ryan J. in February 2014.

d) The fourth is the application seeking certain declaratory reliefs for third party funding in March, 2015 and post May 2017 (the Supreme Court judgment), the letter of 15 February, 2018, furnishing, in the usual way, an amended statement of claim and seeking the consent of the defendants to the amendment and service of that document.

6 In my view the first period of time has now been overtaken by events and itself culminated in the strike out application, which then effectively dealt with matters up to the end of the second period, being the adjudication of that issue by the Supreme Court. In my view, up to the delivery of judgment by the Supreme Court in October 2012 it was not realistic to expect Persona to pursue this action pending that determination.

7 Accordingly, the issues of which the State defendants now complain can only be considered after the judgment of the Supreme Court on the 17th of October, 2012.

8 In seeking to have the plaintiffs” motion struck out, all defendants correctly point out that even if the reliefs sought are refused the Persona proceedings will still continue; in other words, these plaintiffs do not lose their entitlement to deal with the issues which it says arises from the award of the GSM mobile telephone licence to Esat Digiphone, but simply cannot be permitted to make the amendments sought.

9 It is clear that the amendments sought are substantial with the majority arising consequent upon the findings of the Moriarty Tribunal in March, 2011.

10 The requirements of RSC O. 28 r. 1 are well known and state:-

‘The court may, at any stage of the proceedings, allow either party to alter or amend his...