Businessman Denis O’Brien’s position as a “central participant” in an action brought by an unsuccessful bidder against the State over the issuing of the country’s second mobile phone licence entitles him to be added as a defendant to the case, the High Court has ruled.
Mr Justice Seán Ryan said there was no question about Mr O’Brien’s “centrality to the fundamental issues” in legal actions arising from the awarding of the licence to the businessman’s Esat Digifone consortium in 1996.
The judge said Mr O’Brien was entitled to be a defendant rather than just a third party, in the action brought by Persona Digital Telephony and Sigma Wireless Networks, members of a consortium which was runner-up in the licence competition.
The plaintiffs brought their case against the Minister for Public Enterprise and the State alleging Esat won the competition by bribing then communications minister Michael Lowry TD.
Constitutional right
Both plaintiffs opposed Mr O'Brien's application to be added as a defendant, claiming they had a constitutional right to sue whoever they wanted. Mr O'Brien and Mr Lowry were previously joined as notice parties on the application of the State defendants.
Mr O’Brien argued, if he was not a defendant, he would be at a disadvantage in rebutting what he said were false allegations being made about him by the Persona consortium. As the party implicitly alleged to be the payer of the bribe, on behalf of Esat, his legal, proprietary and reputational interest were directly affected, it was argued.
In his ruling, Mr Justice Ryan said that if Mr O’Brien was not a defendant and was “left to stand by” as Persona’s claim was presented against the State defendants only, he would be “observing a drama unfold in which he is the central participant but without entitlement to intervene”.
Mr O’Brien is a defendant in similar proceedings brought by another failed bidder for the licence, the Comcast consortium, the judge noted. “It is impossible to think that the actions could proceed to a conclusion in which all the questions involved would be effectually and completely decided without him being a leading participant”.
Considerable force
There was considerable force to the argument he should be joined as a defendant because Persona alleges he conspired with the Minister to achieve a corrupt outcome to the competition, he added. While Mr O'Brien was not named, he is "implicitly identified", he said.
Joining him as a new defendant was not an “indulgence of his wishes” but rather was in the interests of justice and seeing that litigation is properly and effectively conducted, he said.
