A consortium suing the State and businessman Denis O’Brien over the award of the country’s second mobile phone licence can amend its case provided there is “greater clarity” that the claim being pursued is “firmly anchored in corruption”, the Court of Appeal has ruled.

The three-judge court also permitted the consortium to pursue a claim for restitution against Mr O’Brien for alleged unjust enrichment arising from the 1996 licence award to Esat Digifone and the subsequent sale of the licence for €2.6 billion.

A claim for an account of profits is linked to the unjust enrichment claim and can also be pursued against the businessman, it held.

Persona Digital Telephony Ltd and Sigma Wireless Networks Ltd are suing the Minister for Public Enterprise, the State and Mr O’Brien over the awarding of the licence to Mr O’Brien’s then Esat Digifone consortium in the mid-1990s.

Michael Lowry, who was minister for communications at the time of the licence award and is now an Independent TD, is a third party.

The case was initiated in 2001 but delayed for reasons including the Moriarty tribunal.

The consortium sought in 2018 to make the amendments, most of which arose from the report of the tribunal in March 2011.

Corruption

The defendants claimed many of the proposed amendments advanced new claims that go wider than claims of corruption against the then minister and that this was entirely prejudicial to them.

The State argued the case was not about wrongful acts or corruption by civil servants but rather about corruption in “high office”, namely corruption by a minister

Mr O’Brien argued the amendments being proposed were a “recipe for chaos” and he particularly objected to the plaintiffs being permitted to make a claim of unjust enrichment against him or requiring an account for profits.

After the High Court permitted the amendments, the State and Mr O’Brien appealed.

Ms Justice Aileen Donnelly, giving the Court of Appeal’s detailed judgment on Monday, concluded that the High Court was “in principle” correct to permit the proposed amendments but she disagreed with it over the breadth of those amendments.

In those circumstances, the appeal was being allowed in part, she said.

The Court of Appeal’s anxiety was to ensure the focus was on the alleged “deliberate corruption” of the licence award process, she said.

The amendments can proceed provided there was “greater clarity” that it was a claim firmly anchored in corruption that was being pursued, she ruled.

Mere errors in the process that were not driven by corruption or reflective of corruption are not permitted, she said.

Claim

The core factual claim was of corruption in high office and the amendments directed towards that issue must be allowed, she held.

No amendments which brought the process outside that central feature would be permitted, including claims arising from ordinary procurement principles, she held.

In relation to the claim against Mr O’Brien, she was satisfied it contained sufficient detail to amount to a claim he had been enriched at the expense of the plaintiffs (based upon the commission of a legal or actionable wrong against them) and that the enrichment was unjust because it had come about through alleged wrongful corruption of the procurement process by Mr O’Brien at the expense of the plaintiff.

Whether the plaintiffs would succeed in establishing factually the alleged wrongful actions, or that the alleged actions amounted to commission of a legal or actionable wrong against them, was solely a matter for the trial of the action, she stressed.

Having delivered judgment, the judge urged both sides to take steps to ensure the case got on expeditiously and adjourned outstanding issues to next month.