A British company is prepared to fund a damages action being taken by an unsuccessful bidder for the State’s second mobile phone licence, the High Court has heard.
Harbour Litigation Funding will get a share of the proceeds if members of the consortium bringing the case – Persona Digital Telephony and Sigma Wireless Networks – win their action alleging the awarding process was unfairly conducted.
The Persona/Sigma consortium was a runner-up in the 1996 competition for the mobile phone licence, which was awarded to businessman Denis O'Brien's Esat Digifone consortium. It claims Esat won the competition by bribing the then Minister for Communications, Michael Lowry.
The case was brought against the Minister for Enterprise and the State. It is also against Mr O’Brien after he last year sought and secured a court order allowing him be joined as a defendant. Mr Lowry, now an Independent TD, is a third party to the case.
Ms Justice Aileen Donnelly said she will hear an application next month from the defendants for an order requiring them to be given a copy of the litigation funding arrangement between the Persona/Sigma consortium and Harbour.
Michael Collins SC, for Persona/Sigma, said the case arose out of the Moriarty tribunal, which had made findings of various improprieties in the awarding of the the licence.
His clients’ case was that, had the process been conducted fairly, they stood a chance of winning. They are seeking damages as a result.
Persona/Sigma cannot fund this litigation and has entered into an arrangement with Harbour, an English company which provides third-party funding in such cases as this in return for a share of the proceeds should it be successful, counsel said.
The courts are first asked to decide on the propriety of such an arrangement and whether or not it contravenes “rules of maintenance and champerty”, counsel said. Maintenance is simple assistance while champerty is assistance on the basis of receiving part of the proceeds if successful.
Mr Collins said his side was applying for the High Court to first deal with the issue of maintenance and champerty and give directions on it. Before that happens, the court was being asked by the defendants to decide whether they are entitled to a copy of the arrangement with Harbour, counsel said.
Persona/Sigma opposed a copy of the arrangement being provided to the defendants because they believed it would give the defendants an advantage, counsel said.
His clients had set out significant information about the key features of the arrangements for the defendants and a copy of the actual agreement was not required, he submitted.
Ms Justice Donnelly said she would hear the application concerning whether the defendants should get a copy of the arrangement next month.
