Persona Digital Telephony Ltd and anor v The Minister for Public Enterprise Ireland and the Attorney General and by Order Denis O'Brien and anor
| Jurisdiction | Ireland |
| Judge | McKechnie J.,MacMenamin J.,Dunne J. |
| Judgment Date | 30 October 2020 |
| Neutral Citation | [2020] IESCDET 110 |
| Date | 30 October 2020 |
| Court | Supreme Court |
| Docket Number | Supreme Court record no: S:AP:IE:2020:000027 High Court record no: 2001 No. 9223 P |
AND
AND
AND
[2020] IESCDET 110
McKechnie J.
MacMenamin J.
Dunne J.
Supreme Court record no: S:AP:IE:2020:000027
Court of Appeal record no: A:AP:IE:2019:000269
High Court record no: 2001 No. 9223 P
THE SUPREME COURT
RESULT: The Court does not grant leave to the Fourth Named Defendant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 16th December, 2019 |
| DATE OF ORDER: 20th January, 2020 |
| DATE OF PERFECTION OF ORDER: 12th February, 2020 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 3rd March, 2020 AND WAS IN TIME. |
This is an appeal from a decision of the Court of Appeal (Donnelly J., Baker J. and Costello J. concurring) in which she allowed, in part, the applicant/fourth defendant's appeal from the High Court judgment of Pilkington J., delivered on the 8th May, 2019, wherein the learned judge permitted the plaintiffs (now respondents to this application) to amend their statement of claim in proceedings which have a long and complex history ( Persona Digital Telephony Ltd v. Minister for Public Enterprise & Ors [2019] IEHC 295).
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. In order for this Court to grant leave to appeal from a decision of the Court of Appeal, the Court must be satisfied that there are circumstances which have the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.
The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
It should be noted that any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
Furthermore, the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
In that context it should be noted that the respondents do oppose the grant of leave and no party has requested the making of a reference to the Court of Justice of the European Union under Article 267 TFEU. None of the other defendants or the third party have taken any part in this application.
As above adverted to, the proceedings in which this application is rooted have a lengthy history, one which thankfully it is not necessary to delve into for the purposes of this determination; it being sufficient to say that in the most basic of terms they arise from the State's award of the second GSM mobile phone network licence to ESAT Digifone in 1996 and the events which unfurled following this award. The plaintiffs/respondents issued a plenary summons on the 15th May, 2001 in which they sought significant damages for breach of statutory duty, misfeasance in public office, breach of legitimate expectation, breach of constitutional rights, deceit and a host of other very serious claims against the Minister for Public Enterprise and the State. Their original statement of claim was delivered on the 21st April, 2006. There have been two lengthy judgments already delivered by this Court on various issues relating to the proceedings including the issue of delay ( Comcast International Holdings Incorporated v. Minster for Public Enterprise [2012] IESC 50) and the issue of third party funding for litigation ( Persona Digital Telephony Limited v. The Minister for Public Enterprise [2017] IESC 27): neither of these are directly relevant to this application except as explaining both the gravity of the issues in and the duration of, this litigation.
The applicant, Mr. Denis O'Brien, who was a major shareholder in Esat Digifone at the relevant time, became the fourth defendant to the proceedings upon application by him, one which Ryan J. (then of the High Court) acceded to on the 21st February, 2014 ( Persona Digital Telephony Limited & Ors. v. The Minister for Public Enterprise & Ors. [2014] IEHC 78). Whilst it was accepted by Mr. O'Brien that his joinder in the litigation would necessitate an amended statement of claim, however the respondents did not seek to serve the same until...
To continue reading
Request your trial