Businessman Denis O'Brien has been ordered to produce documents for inspection in a case taken against him over the award of the second mobile telephone licence to his company Esat Digifone in the mid-1990s.
Mr O’Brien, along with the Minister for Public Enterprise, Ireland and the Attorney General is being sued by Persona Digital Telephony Limited and Sigma Wireless Networks limited who were unsuccessful applicants for the licence.
Michael Lowry, who was the minister responsible for the awarding of the licence, is a notice party to the proceedings.
Mr O’Brien had refused to make discovery of more than a thousand documents sought by the plaintiffs in May 2023, as he had claimed they were provided to him in confidence by the Moriarty Tribunal.
Persona and Sigma in their action claim that the tender process for the licence was corrupted by Mr Lowry who, they claim, abused his public office, accepted payments and/or benefits from or on behalf of Mr O’Brien or Esat, interfered with the tender process, and secured the award of the licence to Esat. They also contend that were it not for this, they would have won the tender competition.
In her ruling on the discovery of documents, Ms Justice Emily Egan said there was substantial overlap between the claim and the matters investigated by the Tribunal. And she said, that much of the plaintiff’s claim is based on portions of the tribunal’s report.
Mr O’Brien had claimed that he could not make discovery of many of the documents sought by the plaintiffs as the documentation was provided to him by the Tribunal during the course of its investigation on the basis that it was confidential.
These documents were included in public sitting books distributed by the tribunal to the parties before public sittings began.
Judge Egan ruled there was no justification for Mr O’Brien’s failure to discover documents which although they were furnished to him by the tribunal were independently in his possession or in that of Esat. She noted that he had now discovered 348 such documents although she criticised his delay in doing so.
In relation to other documents not in his control, the judge noted that when challenged, Mr O’Brien had failed for many months to place before the court any evidence substantiating his claim to confidentiality.
Ms Justice Egan said the vast majority of the documents were decades old, relating to a tender process completed in 1996 and a tribunal that is almost finished, except for some winding down procedures. She said disclosing the documents could have no conceivable chilling effect on its continued operations.
The judge said the tribunal had concluded there was corruption at the highest level of Irish politics which impacted on the award of the mobile phone licence.
She said it would be ironic if she were to hold that because of the public interest, parties who contend they were "damnified by the very process inquired into by the Tribunal," may not access documents the tribunal deemed highly relevant, in order to take proceedings to vindicate their rights.
The judge said the conclusions reached by the tribunal were inadmissible before the court. And it may well be, she said, that Mr O’Brien believes the tribunal’s interpretation of the documents was flawed. She said he may also question their authenticity or admissibility, but she said he would have the opportunity to make these arguments at the full hearing of the action.
She said public interest considerations supporting the confidentiality of the documents had to be weighed against the interest of the plaintiffs to have access to documents enabling them to fairly and properly prosecute this action.
She said depriving the plaintiffs of documents which had been furnished by the tribunal to all the other parties in the proceedings would place them at a significant litigious disadvantage and result in an unfair hearing.
The judge ruled that any confidentiality persisting in relation to the documents was outweighed by the interests of the administration of justice.
She ordered Mr O’Brien to furnish an additional affidavit and produce the documents for inspection.
