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URL: http://www.bailii.org/ie/cases/IESC/2012/S50.html
Cite as: [2012] IESC 50

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Judgment Title: Comcast Int. Holdings v Minister for Public Enterprise & ors and Persona Digital Telephony Ltd v Minister for Public Enterprise & ors

Neutral Citation: [2012] IESC 50

Supreme Court Record Number: 213, 215 & 216/07

High Court Record Number: 2001 9223P, 2001 15119P & 2001 9228P

Date of Delivery: 17/10/2012

Court: Supreme Court

Composition of Court: Denham C.J., Hardiman J., Fennelly J., McKechnie J., Clarke J.

Judgment by: Denham C.J.

Status of Judgment: Approved

Judgments by
Link to Judgment
Result
Denham C.J.
Allow
Hardiman J.
Allow
Fennelly J.
Allow
McKechnie J.
Allow
Clarke J.
Allow


Outcome: Allow And Set Aside




THE SUPREME COURT
Appeals No. 216, 215 and 213

Denham C.J.
Hardiman J.
Fennelly J.
McKechnie J.
Clarke J.
[High Court Record No. 2001 No. 9288P]




Between/

Comcast International Holdings Incorporated, Declan Ganley, Ganley International Limited and GCI Limited
Plaintiffs/Appellants
and

Minister for Public Enterprise, Michael Lowry, Esat Telecommunications Limited, Denis O’Brien, Ireland, and the Attorney General

Defendants/Respondents

[High Court Record No. 2001 No. 15119P]





Between/

Comcast International Holdings Incorporated, Declan Ganley, Ganley International Limited and GCI Limited
Plaintiffs/Appellants
and

Minister for Public Enterprise, Michael Lowry, Esat Telecommunications Limited, Denis O’Brien, Ireland, and the Attorney General

Defendants/Respondents

[High Court Record No. 2001 No. 9223P]





Between/

Persona Digital Telephony Limited, and Sigma Wireless Networks Limited
Plaintiffs/Appellants
and

Minister for Public Enterprise, Ireland and the Attorney General

Defendants/Respondents

Reasons delivered on the 17th day of October, 2012 by Denham C.J.

1. These three appeals were heard together by this appellate court, as they had been heard together by the High Court.

2. The appeals were heard on the 10th, 11th and 12th July, 2012.

3. On the 17th July, 2012, the Court indicated that it would allow the appeals and that reasons would be given in October.

4. In this judgment I deliver the reasons why I would allow the appeals.

5. These proceedings were commenced consequent to the decision of the Minister for Public Enterprise, hereinafter referred to as “the Minister”, made on the 25th October, 1995, to award the second GSM mobile telephone licence, hereinafter referred to as “the licence”, to ESAT Telecommunications Limited, hereinafter referred to as “ESAT”. On the 2nd March, 1995, the Minister had announced a bid process for the licence. The deadline for receipt of tenders was extended on the 16th June, 1995, from the 23rd June, 1995, to the 4th August, 1995, and the result of the competition was announced on the 25th October, 1995.

Three sets of proceedings
6. The three sets of proceedings were commenced as follows:-

(i) In the first set of proceedings the plaintiffs/appellants, referred to as “Comcast”, issued a plenary summons on the 15th June, 2001, which was served on the 14th June, 2002. The first set of proceedings relate primarily to the decision of the Minister on the 16th June, 1995, to extend the deadline of the 23rd June, 1995, for the receipt of tenders for the award of the licence. The proceedings seek a declaration that the decision is null and void, and there is a claim for damages for alleged breach of statutory duty, misfeasance in public office, breach of or procuring a breach of the Prevention of Corruption Act, 1906, fraud, deceit, breach of duty and breach of contract. The defendants/respondents, excluding the State defendants/respondents, are referred to as “the respondents”. The State defendants/respondents, who are referred to as “the State”, entered an appearance on the 20th June, 2002. A statement of claim was delivered on the 3rd June, 2005.

6. (ii) In the second set of proceedings serious allegations were made by Comcast; primarily the cause of action and the remedies sought are in relation to the decision of the 25th October, 1995. The plenary summons was issued on the 10th October, 2001 and served on the 4th October, 2002. An appearance was entered on behalf of the State on the 16th December, 2002. A statement of claim was served on the 3rd June, 2005.

6. (iii) In the third set of proceedings a plenary summons was issued by the plaintiffs/appellants, hereinafter referred to as “Persona”, on the 15th June, 2001, which was served on the 10th June, 2002. The summons claimed damages (including exemplary damages) for misfeasance in public office, breach of duty, including statutory duty, breach of contract, breach of legitimate expectations of Persona, breach of constitutional rights of Persona, breach of rights under EU law, and a declaration that the European Communities (Mobiles and Personal Communications) Regulations 1996, hereinafter referred to as “the Regulations of 1996”, contravene EU law. An appearance was entered on behalf of the State on the 20th June, 2002. The statement of claim was delivered on the 21st April, 2006.

Motions
7. The State brought motions, dated the 26th May, 2006, and filed on the 29th May, 2006, giving notice that on the 26th June, 2006 at 11.00 a.m., or at the first available opportunity thereafter, counsel for the Minister, Ireland and the Attorney General would apply for the following reliefs:-

        (i) An order, pursuant to the inherent jurisdiction of the court, dismissing the proceedings as against the Minister, Ireland and the Attorney General, for delay and/or want of prosecution.

        (ii) An order, pursuant to the inherent jurisdiction of the court, dismissing the proceedings as against the Minister, Ireland, and the Attorney General, in the interests of justice.

        (iii) Such further and ancillary orders as the court may deem proper and appropriate

8. The motions were heard by the High Court (Gilligan J.) on the 8th and 9th February, 2007, and judgment was delivered on the 13th June, 2007. On the 3rd July, 2007, the High Court through its orders dismissed for inordinate and inexcusable delay Persona’s action and both actions taken by Comcast. The orders were perfected on the 9th July, 2007.

The High Court Judgment
9. (i) In the High Court, the learned High Court judge found that there was no significance material difference between the applications brought by the State and the grounds of defence raised by Comcast and Persona, referred to as “the appellants”, and as a consequence all three motions were heard together. The High Court decided to deliver one judgment in respect of the three motions on the three sets of proceedings.

9. (ii) The learned High Court judge held that there was no dispute between the parties that the delay was inordinate. So, the first issue that arose for determination in the High Court was whether or not the delay was inexcusable. The learned High Court judge held:-

      “My overall conclusion is that I do not consider that the excuses offered by [the appellants] and, in particular, that they were monitoring the hearings of the Moriarty Tribunal into the award of the second GSM mobile telephone licence and, hence, did not deliver a statement of claim, an explanation that constitutes a valid excuse and, accordingly, I come to the conclusion that the delay involved in the prosecution of all three claims herein is not only inordinate but also inexcusable. The delay, in my view, goes beyond the minimum which may be considered inordinate.”
9. (iii) As the High Court had come to the conclusion that the delay was inordinate and inexcusable, that Court moved on to consider whether the balance of justice favoured the advancement, or not, of the proceedings. The High Court pointed out that no case was made by the State of any specific prejudice having occurred by reason of the inordinate and unreasonable delay. The learned High Court judge stated that the appellants and the State had contributed to the delay involved. He also stated:-
      “In the particular circumstances of this case all the parties who are involved in these three sets of proceedings were parties with an interest in the matters being dealt with at the Moriarty Tribunal. The relevant parties to these proceedings were present on every hearing date relating to any matters touching on the subject matter of these proceedings.”
9. (iv) The High Court stated that the State would suffer a presumed prejudice if the appellants were permitted to proceed with their actions, and assessed the prejudice as moderate. Having analysed the situation further he stated:-
      “I come to the conclusion that where responsibility for inordinate and inexcusable delay rests primarily with the [appellants], where there is presumed prejudice of a moderate nature, where the issues to be determined are of a very substantial commercial nature, where the actions leading to the delay involved are deliberate and conscious, where the prospects of a fair trial have been undermined, where the [appellants] have failed after a late start to advance their proceedings expeditiously, the balance of justice favours the dismissal of the proceedings and, accordingly, I dismiss the [appellants] proceedings as against the [State] for want of prosecution.”
9. (v) The High Court also addressed the application brought pursuant to the inherent jurisdiction of the Court to dismiss the appellants’ claim in the interests of justice, where reliance was placed on Article 6 of the European Convention on Human Rights. Reference was made to O’Domhnaill v. Merrick [1984] I.R. 151; Toal v. Duignan (No. 1) [1991] ILRM 135; Toal v. Duignan (No. 2) [1991] ILRM 140, especially at pp. 142 – 143; and McMullen v. Ireland (ECtHR application No. 42297/98, 29th July, 2004.) The learned High Court judge held:-
      “In my view, for this Court to be asked in 2009 to determine primarily issues of fact that will have occurred at the time of the prospective hearing date some 14 years previously, gives rise to a basic unfairness of procedures, undermines the [State’s] ability to have a fair trial, creates a clear and patent unfairness in asking the [State] to defend the action, and clearly fails to provide the [State] with a hearing within a reasonable time of the alleged cause of action having occurred. In essence, in my view, in a case such as this, it puts “justice to the hazard to such an extent that it would be a derogation (sic) of basic fairness to allow the case to proceed to trial” as per Henchy J. in O’Domhnaill at p. 158. In these circumstances, I come to the conclusion pursuant to the inherent jurisdiction of the court to dismiss the [appellants’] claim as against the [State].”

Notice of Appeal
10. Comcast issued a notice of appeal on the 27th July, 2007. Inter alia, the grounds of appeal were that the learned trial judge erred in fact and in law in considering that the appellants’ delay was inexcusable; that the learned trial judge erred in law and in fact in considering that the balance of justice was against allowing the case to proceed; and that the learned trial judge erred in considering that the appellants’ proceedings should be struck out in the interests of justice. Persona issued a notice of appeal on the 25th July, 2007. Inter alia, its grounds of appeal were that the learned trial judge erred in law and fact in determining that delay was inexcusable; that the balance of justice favoured the dismissal of the proceedings; and that the State wrote to Persona stating that if a statement of claim was not delivered within 21 days then a motion for dismissal of proceedings would issue and consented to the late filing of the statement of claim if it was delivered within 21 days

Issue Paper
11. An issue paper was produced by the State and was before the Court. It set out issues for the Court as follows:-

11. (i) Is this delay in these cases excusable (the appellants having already conceded the delay was inordinate) by reason of the following:-

        (i) the decision of the appellants to adopt a “wait and see” policy in respect of the hearings of the Moriarty Tribunal, “the Tribunal”, having regard to the specific allegations made by the appellants in their pleadings when the cases were initiated;

        (ii) the appellants’ contention that if the appellants had attempted to bring on the proceedings during the Tribunal hearings the State would have resisted this course;

        (iii) Persona’s assertion that the State did not believe the proceedings were dormant having regard to (a) a statement by the former solicitor for Persona to a solicitor from the Office of the Chief State Solicitor, in response to a query by the latter, that no statement of claim would be delivered in the proceedings “for the foreseeable future” as Persona were following the Tribunal, and (b) the delivery of a 21 day letter by the Office of the Chief State Solicitor to Persona seeking delivery of a statement of claim within 21 days under threat of a motion to strike out in default;

        (iv) the nature and extent of the State’s own inaction/delay;

        (v) the nature of and the issues in the proceedings;

        (vi) the time that has elapsed since the events giving rise to these proceedings.

11. (ii) Was the trial judge correct in law in holding that the balance of the interests of justice required the appellants’ claims to be dismissed, having regard to:
        (i) the overall delay in the proceedings and the relative contributions of the appellants and the State respectively to same;

        (ii) the deliberate and conscious nature of the decision of the appellants to “wait and see”;

        (iii) the holding of the existence of prejudice of a modest nature to the State;

        (iv) the likely nature and extent of the issues and evidence at the trial;

        (v) the finding that to ask the State to defend the proceedings would be unfair and undermine their ability to have a fair trial;

        (vi) the effect of the provisions of Article 6 of the European Convention on Human Rights;

        (vii) the exercise by the learned trial judge of his discretion having regard to the matters referred to in his judgment as set out above.

Law
12. In all the circumstances, the primary relevant law is that stated in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 495, hereinafter referred to as Primor, where the issue was whether proceedings should be dismissed for want of prosecution. In delivering a judgment, Hamilton C.J., at p. 475, summarised the relevant principles of law as follows:-
      “(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;

      (b) it must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay, was inordinate and inexcusable;

      (c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;

      (d) in considering this latter obligation the court is entitled to take into consideration and have regard to


        (i) the implied constitutional principles of basic fairness of procedures,

        (ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action,

        (iii) any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at,

        (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay,

        (v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case,

        (vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,

        (vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.”

These are the principles of law relevant to the appeals before the Court. This is not an appeal relating to a criminal trial, and thus the law as to delay and a criminal trial does not apply.

13. The nature of an inordinate and inexcusable delay requires to be considered in all the circumstances of the case. Thus, the factors of each case require to be analysed.

In addition, in recent times there has been an acknowledgement that cases may not be let lie, in a laissez faire attitude, for the parties to move. There is a requirement to ensure that cases are progressed reasonably. This approach has been the subject of litigation in Ireland and has also been addressed by the European Court on Human Rights. For example, in Price and Lowe v. The United Kingdom 43185/98, there was an application alleging a violation of Article 6 of the Convention in connection with the length of the proceedings at issue. Article 6 provides:

      "In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time..."
The ECtHR reiterated that the reasonableness of the length of the proceedings must be addressed in the light of the circumstances of the case, and having regard to the criteria laid down in the Court's case law, in particular:
        • The complexity of the case,

        • The conduct of the applicant,

        • The conduct of the relevant authorities, and

        • The importance of what is at stake for the applicant in the litigation.

The Court held that the manner in which a State provides for mechanisms to comply with this requirement - whether by way of increasing the number of judges, or by automatic time-limits and directions, or by some other method - is for the State to decide. In this case the domestic law is that stated in Primor, where the factors identified by Hamilton C.J., as set out previously, are not dissimilar to the criteria set out in Price.

Decision

14. As indicated on the 17th July, 2012, I would allow the appeals. Consequently the proceedings may continue in the High Court, for the following reasons.

Reasons


Issues
15. On behalf of the appellants it was submitted that there were three issues to be determined:-
            (i) Is the delay an excusable delay? (It was accepted that it was an inordinate delay).

            (ii) If it was not excusable does the balance of justice mean it should be struck out?

            (iii) There was a free standing issue as to whether the interests of justice enable the claim to be dismissed.

I shall follow this sequence in giving my reasons.

In essence, as it was accepted that there was inordinate delay by the appellants, at issue was whether the delay by the appellants was excusable in all the circumstances of the case.

Facts
16. The dates as to the proceedings in these appeals are not in issue, as they are not contested. The dates when the proceedings were issued, were delivered, and the various steps taken, are not disputed and have been set out earlier in this judgment.

Primor – inordinate delay
17. The relevant law is as described above by Hamilton C.J. in Primor.

18. Thus, the first issue is whether there has been inordinate delay by the appellants in moving the proceedings. The relevant time period to consider whether or not there was inordinate delay was from the commencement of the proceedings until the delivery of the statement of claim. Both Comcast and Persona accepted that there was inordinate delay. Thus, the first aspect of the test under Primor was met.

Primor – inexcusable delay
19. The second issue to address is whether the delay was excusable.

Claim of corruption
20. In considering this case the serious and important nature of the matters of corruption claimed by the appellants is a relevant factor.

21. Thus, for example, the plenary summons issued by Comcast, on the 10th October, 2001, claims that the decision to award the licence to Esat is unlawful and void, and damages are sought on a number of alleged bases, including misfeasance in public office, fraud, and deceit.

22. In the statement of claim, delivered on the 3rd June, 2005, Comcast claims:-

      “Wrongfully, and in breach of contract, breach of duty and breach of statutory duty, the Minister interfered with the integrity of the tender process. He abused his public office by intervening in the tender process to ensure that the licence be awarded to Esat. He accepted payments made by or on behalf of Esat and/or Denis O’Brien to ensure the award of the licence to Esat and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat. In doing so, he breached the Prevention of Corruption Act, 1906. In representing the tender process and the award of the licence to Esat as having been the result of a fair and honest tender process, he engaged in fraud and deceit and abused his office.”
23. In both of the statements of claim, in each of the proceedings, Comcast stated explicitly that it was unable to give full particulars of the wrongdoing of the Minister, pending the conclusion of the investigations the subject of inquiry by the Tribunal.

24. However, on the basis of the information disclosed at the public hearings of the Tribunal to that date, Comcast stated that “it is clear that the Minister engaged in the following forms of wrongdoing:-

(a) The Minister compromised the integrity of the tender process by breaching the guidelines for communications with bidders:

        i. On August 16th 1995, while the bids were being evaluated, the Minister met with the chairman of one of the bidders, the Persona Consortium, and discussed that consortium's bid;

        ii. On September 15th 1995, the Minister met with Mr Tony O'Reilly, a representative of another bidder, the AT&T consortium, and made reference to that consortium's bid;

        iii. In September 1995, the Minister met with Denis O'Brien and suggested that IIU Nominees Limited ("IIU") should become involved in the Esat consortium.

(b) The Minister, his servants or agents disclosed or caused to be disclosed confidential information in relation to the bid process to Esat;
        i. Esat was informed of the fact that the competition structure was to be changed from a "straight auction" to "beauty contest" and of the extension of the bidding process prior to any such information being -disclosed to the other bidders;

        ii. The Minister, his servants or agents, informed Esat of the contents of discussions with the European Commission in relation to the imposition of a cap on the licence fee. Access to this information placed Esat at a significant competitive advantage;

        iii. The Minister, his servants or agents disclosed or caused to be disclosed certain of the weightings to be applied to the evaluation of bids.

(c) The Minister modified the terms of and unlawfully interfered with the tender process to favour Esat.
      i. The Minister, his servants or agents intervened to ensure the imposition of the cap of £15m on the licence fee;

      ii. The Minister amended the timing of key milestones in the tender process, including the final date by which tender bids were to be lodged. The original closing date for receipt of submissions of tenders was June 23rd 1995. This date was extended to August 4th 1995. The purpose and effect of the extension of this deadline was to favour Esat;

      iii. The evaluation methodology was modified with the aim and effect of favouring Esat.

      iv. The Minister intervened in the substantive evaluation process to ensure that the choice of successful bid was determined other than by reference to the recommendation of the project group;

      v. The Minister failed to conduct any or any appropriate assessment to satisfy himself as to the financial and/or technical capacity of Esat prior to the award of the licence;

      vi. Notwithstanding the Minister's knowledge that the Esat bid lacked reasonable financial capability, the Minister nonetheless awarded the licence to Esat;

      vii. The Minister expedited the selection and announcement of the successful bid and, in so doing, failed to have any or any adequate regard to the final evaluation report prepared by the external consultants ("AMI") appointed to advise on the evaluation of bids, which report did not identify a definitive winner. The Minister made a public announcement on October 25th 1995 to the effect that the competition was won by Esat prior to the presentation of the final evaluation report to the Department, and prior to the consideration of that report by the project group;

      viii. The Minister unlawfully procured or facilitated the entry of IIU into the Esat consortium after the submission by Esat of its bid on August 4th 1995. In so permitting a post-submission amendment to the bid, he breached the rules of the tender process;

      ix. The Minister was aware of the involvement of IIU in the bid prior to the award of the licence to Esat. Nonetheless, he failed to take any steps to assess the financial capacity of the Esat consortium to the detriment of the other bidders. No assessment of the financial standing of IIU was conducted by the Minister, his servants or agents, until May 1996, prior to the signing of the licence agreement by the Minister;

      x. The Minister abused his position prior to the award of licence to Esat by intervening with the Electricity Supply Board ("ESB") to ensure that Esat would be permitted to erect masts on ESB pylons;

(d) The Minister accepted improper payments made by Denis O'Brien and/or Esat which payments were made to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat.
      i. Subsequent to the announcement of the decision to award the licence to Esat, the sum of US$50,000 was paid, in December 1995, by Esat to an offshore account operated by David Austin, a senior Fine Gael fundraiser. The sum of €50,000 was paid by David Austin to Fine Gael on May 6th 1997. The said sum was repaid on March 2nd 1998. Fine Gael indicated that it could not accept the payment of the sum which Mr O'Brien claimed to have been a donation from Esat. [Comcast] contend that the payment of US$50,000 was intended by Denis O'Brien to influence the outcome of the tender process and/or to ensure that Esat was awarded the licence and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat;

      ii. The Minister accepted the sum of €100,000 paid by Denis O'Brien in early/mid-1996. The aim and effect of this payment was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat;

      iii. In July 1996, Denis O'Brien arranged for the payment of £150,000 to David Austin, who transferred the sum of £147,000 to the Minister. The aim and effect of the transfer of funds from Denis O'Brien to David Austin and subsequently to the Minister was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat;

      iv. Denis O'Brien financed the purchase of a property in Mansfield, England acquired by the Minister. The aim and effect of the provision of finance for the acquisition of the Mansfield property was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat.

And [Comcast] reserve[d] the right to deliver further particulars hereof at any time before the trial of this action.

25. In the statement of claim delivered by Persona, on the 21st April, 2006, it was claimed, inter alia, that about the 2nd March, 1995, a conspiracy was hatched whereby the Minister for Public Enterprise, its servants or agents, and/or the Minister, conspired with another, namely Esat, its servants or agents, to promote an inevitable competition result. In the furtherance of the conspiracy the parties infiltrated or penetrated the competition and/or in the alternative ignored or disregarded the competition process and/or in the alternative utilised the process for the purpose of concealment and thereby ensuring the granting of the licence to Esat. Also, it is claimed that on dates unknown the Minister, its servants or agents, acting in purported exercise of their powers and functions and purportedly acting in the best interests of the public, but the Minister acted unlawfully and maliciously and committed an act or acts, or knowingly acted ultra vires or acted with reckless indifference and as such, they deliberately or dishonestly abused the power conferred, abused authority, abused trust with the known consequences that it would cause injury and damage to Persona. There is a claim for special damages. There is also a claim for aggravated, punitive and exemplary damages on the basis, inter alia, of the seriousness of the corrupt practices engaged in; the fact that the corrupt practices were at the highest level, i.e. they involved the Minister; the fact that the Minister abused his office and his authority and breached trust; the fact that the Minister used his office for a personal self serving purpose; the fact that the corrupt practices were not merely opportunistic but were carefully planned and designed; the fact that the Minister wantonly and unlawfully utilised his position of trust in disregard of the public interest.

Affidavits
26. The reasons for the delay by Comcast and Persona were stated on affidavit by Damien Young and William Jolley, respectively.

27. Damien Young deposed that at the time of issuing the proceedings, Comcast believed that the award of the licence was wrongful. He stated that the subject matter of these proceedings was also the subject matter of the Tribunal and that it had been anticipated that the Tribunal would have completed its work in relation to the licence module within a one year following the issuing of the plenary summons, i.e. by June 2002. He deposed: “Unfortunately, this was not the case”. When Damien Young deposed his affidavit on the 23rd June, 2006, the licence module of the Tribunal had not yet been completed. The module had been going on for years, and was suspended for a time pending an appeal to this Court.

28. Damien Young explained:-

      “At the time of the issuing of the proceedings, [Comcast] believed that the award of the second GSM licence to [Esat], was wrongful. However, [Comcast] were not in a position to know the detail of the manner, nature and extent of the breaches of the tender process. They hoped that this detail would be clarified by the Moriarty Tribunal, permitting the delivery by [Comcast] of a particularised Statement of Claim.”
29. Damien Young deposed that while he accepted that there had been delay, he deposed that it was excusable as the subject matter of the proceedings was also the subject matter of continued investigation by the Tribunal. He stated that the complexity of the subject matter of these proceedings is evident from the time taken by the Tribunal in investigating the matter. He stated that Comcast cannot be expected to be aware of all the details of the improper payments and conduct which Comcast believe resulted in the award of the licence to Esat. He deposed that it was reasonable for Comcast to await the information provided in the public hearings of the Tribunal prior to the delivery of the Statement of Claim. He also deposed that there was no particular prejudice suffered by the State.

30. In his affidavit William Jolley deposed, inter alia, that the interference by the Minister was a complete abuse by the Minister of his office. In 1996 Persona had made a complaint to the European Union in relation to the manner in which the competition for the grant of the licence was conducted, but was told that the matter was essentially one for the Irish courts. He deposed that in May, 2001, the Tribunal indicated that it was commencing investigations into the circumstances in which the Minister, Michael Lowry, granted the licence to Esat. He stated that this announcement by the Tribunal confirmed the concerns of Persona into the grant of the licence and a decision was made to issue the within proceedings.

31. He deposed:-

9. “The Moriarty Tribunal went into public session in relation to the circumstances surrounding the grant of the said licence in December, 2002. The [Minister] has been represented at the public hearings by Mr. Shaw (on behalf of the Chief State Solicitor's Office). [Persona’s] former solicitors, and in particular Mr. Gerald Moloney and John O'Donovan, have attended more or less every public sitting of the Tribunal since 2001. Mr. Moloney has informed me that on a number of occasions casual conversations have taken place between him and Mr. Shaw. In particular, I am informed by Mr. Moloney that not long after the service of the proceedings Mr. Moloney met Mr. Shaw at the Tribunal and was asked by Mr. Shaw if he was going to deliver a Statement of Claim. Mr. Moloney told Mr. Shaw that he would not be delivering it for the foreseeable future for the very reason that the [Persona] (and their representatives) would firstly be following the evidence which was likely to unfold at the Tribunal. Mr. Moloney informs me that at no stage did Mr. Shaw object to this proposed course of action and indeed if anything appeared to be relieved as his Clients had more than enough to do in dealing with the Tribunal.

10. Having regard to the constant attendance by the [Persona’s] legal representatives at the Tribunal and the aforementioned conversations, the [State] are well aware of [Persona’s} intention to prosecute these proceedings. During the course of the Tribunal hearings Tony Boyle, a director of [Persona], has given evidence and has been subjected to cross examination by Counsel on behalf of the [Minister]. During the course of that cross examination Counsel for the [Minister] has referred to the existence of the proceedings and while suggesting that the Tribunal is being used as "a kind of stalking horse" for the proceedings (which Mr. Boyle did not accept) never made any complaint about any alleged delay or prejudice being suffered by the Minister or any of the other State Defendants.

11. The within proceedings are serious and complex and involve the assimilation of a large volume of information and evidence. Certain information and avenues of inquiry have been identified during the course of the public sittings which have assisted [Persona] in the preparation of their case and the assimilation of evidence outside of the Tribunal. The prosecution of the case is not, however, dependent upon any particular finding by the Moriarty Tribunal and it is [Persona’s] intention to proceed with these proceedings irrespective of what conclusion the Moriarty Tribunal may come to.

12. Representatives of the [State] have given evidence to the Moriarty Tribunal as to their involvement in the licence competition. That module of the Moriarty Tribunal has not been completed yet as far as I am aware no complaint has ever been made by or on behalf of the [State] or the officials of the Department of any prejudice due to the remove in time between the Tribunal hearings and the events under investigation dating back to 1995. Furthermore, it is apparent from the public hearings of the Tribunal that considerable documentation is available to assist the various Department officials in their recollection of events where such is necessary.

13. The timing of the issue of the current motion is of significance. As appears from exhibit "MS1" to Mr. Shaw's Affidavit no complaint was made between 2002 and 2006 in respect of [Persona’s] failure to deliver a Statement of Claim. On the 23rd March, 2006 I served on the Chief State Solicitor's Office a Notice of Change of Solicitor. Within a week of receipt of that letter Mr. Shaw wrote to me seeking the delivery of a Statement of Claim and consenting to its delivery within 21 days. Nowhere in that letter does Mr. Shaw complain of any prejudice; on the contrary, he invites [Persona] to proceed with their claim and it is difficult to understand what has occurred between that date (31st March, 2006) and 26th May, 2006 to bring about such a fundamental change in approach. [Persona] believe[s], and I concur, that the request for the delivery of a Statement of Claim made immediately after the service of a Notice of Change of Solicitor was done so to "catch the plaintiffs on the hop.” I had in fact sought a short extension of the 21 day period on 5th , 11th and 21st April, 2006 but never received any response to that request. I beg to refer to copies of the three letters upon which marked with the letter "WJ" I have endorsed my name prior to the swearing hereof. Furthermore, I also rang the Office of the Chief State Solicitor on a number of occasions and left messages but my calls were largely ignored and disregarded. In fact, the Statement of Claim was delivered within the 21 day period allowed in the letter of 31st March, 2006.”

Application to strike out proceedings
32. As may be seen from the affidavit of William Jolley, quoted previously, the position of Persona was also that they were following the evidence likely to unfold at the Tribunal. Further, that the State were aware of this approach.

33. On Monday the 9th May, 2005, the High Court (Kelly J.) ordered in both of the proceedings by Comcast that unless Comcast do within 28 days from the 9th May, 2005, deliver a statement of claim to the fourth named defendant, Mr. Denis O’Brien, that Comcast’s claims would stand dismissed for want of prosecution as against the fourth named defendant for failure to deliver a statement of claim within the time prescribed by the Rules of the Superior Court.

34. The statements of claim in both Comcast proceedings were delivered on the 3rd June, 2005, i.e. within the time required by the order of the High Court.

35. Thus, Comcast had met the requirements of the High Court order.

36. On the 28th July, 2005, the solicitors for the fourth named defendant sought further particulars in the Comcast proceedings. The replies to notice for particulars are dated the 12th January, 2006. On the 7th March, 2006, a notice of change of solicitor on behalf of the fourth named defendant was filed. On the 15th May, 2006, a defence and counterclaim on behalf of the fourth named defendant was served. On the 14th November, 2006, a defence to the counterclaim was delivered on behalf of Comcast, and notice of particulars sought on behalf of Comcast on the counterclaim.

37. It was in the midst of these circumstances that, on the 26th May, 2006, the State issued the motion, the subject of this appeal, to dismiss the proceedings against the State.

Decision on excusability
38. It is clear from the evidence before the High Court and this Court that the primary reason for the delay in the proceedings was the decision taken by Comcast and Persona to await the completion of the investigative section of the Tribunal into the granting of the licence.

39. Usually a deliberate decision by a party to delay proceedings is not excusable, but this case is unique for a number of reasons. These reasons include the following:

(i) The facts which form the foundation for the claim were being investigated by a Tribunal of Inquiry at the same time as the proceedings were contemplated and then commenced.

(ii) The nature of the facts alleged are very serious and rare, i.e. a claim of corruption of a Minister of the Government.

(iii) In addition, the facts in such proceedings are of their nature very difficult to expose and particularize.

(iv) Also, the case is complex.

(v) Counsel for Comcast put the matter starkly, stating that the excuse for the delay was that the appellants were not in a position to prosecute the claim in any wholly informed way until they were educated by the investigative hearings of the Tribunal.

(vi) It is relevant also that during the time in issue the State took no active step to advance the court proceedings. On the facts, the State took no steps to advance the proceedings from the serving of the three plenary summonses in 2002 to April, 2006, when the State gave consent to the late filing, within a specific time, of Persona’s statement of claim in April, 2006, which was delivered within that time on the 21st April, 2006. However, the State, in May, 2006, issued motions to dismiss for want of prosecution each of Persona’s and Comcast’s proceedings, which became the subject of this appeal.

In contrast to the State’s inaction, a natural person, Mr Denis O’Brien, who is the fourth named defendant in the Comcast proceedings, in late 2004, sought to dismiss for want of prosecution Comcast’s claims against him by application to the Master of the High Court, which was refused, and then by application to the High Court, which was also refused if Comcast delivered its statement of claim to Mr O’Brien within 28 days of the order of the High Court, which was made on the 9th May, 2005. Comcast delivered the statement of claim to Mr O’Brien within the time limit set by the order and delivered the statement of claim to the State on the 3rd June, 2005. Mr O’Brien then sought particulars from Comcast, which were provided by Comcast in January, 2006, and Mr O’Brien delivered a defence and counterclaim in May, 2006, to which Comcast responded to in November, 2006.

Thus, the High Court addressed the issue of delay in 2005 and required the statement of claim to be delivered rather than dismiss the proceedings; the sequence of events that followed demonstrated the engagement by Comcast with a party who sought to advance the progression of the proceedings in 2005 and 2006 and provides context to view the State’s response to the appellants’ proceedings. In all the unique circumstances of this case, there was, at the very least, a de facto acquiescence in the delay in the proceedings on the State’s behalf.

(vii) The inaction of the State between 2002 to 2006 in these proceedings even continued after the statements of claim of Comcast were delivered, when they failed to react to the delivery of the first two statements of claim in 2005. The State did not proceed to seek particulars such as would be expected in a complex case.

(viii) During those years, 2002 to 2006, all the parties, to one degree or another, were engaged in and monitoring the investigations of the Tribunal into the granting of the licence.

(ix) An unusual feature of the case is that, as a consequence of the Tribunal inquiries, witnesses have made statements and given oral evidence relevant to the granting of the licence. Consequently, evidence has been gathered because of the investigative hearings of the Tribunal. Thus, while the appellants would need to present their evidence in proceedings before the courts, this is not a case where, years after an event, with no intervening warning, defendants are required to defend a claim.

(x) The State was on notice of the appellants’ approach, i.e. of the appellants’ decision to wait until the investigative section of the Tribunal into the granting of the licence had progressed, before serving the statements of claim. This notice may have been express, in accordance with the evidence deposed by William Jolley, as set out above, of conversations between Mr. Moloney and Mr. Shaw. It was not contradicted. Or the position may have been implied. Whichever way the situation is considered the facts are that the State was participating in the Tribunal, had been served with the plenary summonses in these proceedings, and yet took no step to seek to advance these proceedings during these years. Indeed, the State did not object until the 29th May, 2006, when it filed its motions to dismiss for delay and/or want of prosecution. I take this, at the very least, as a de facto acquiescence in the delay in the proceedings pending the conclusion of the investigative sessions of the Tribunal, in all the unique circumstances of the case.

(xi) Persona relied on the letter of the 31st March, 2006, as indicating the State’s position. The letter stated:-

      “Please note that if you do not file a statement of claim on behalf of your clients within 21 days from the date hereof, I am instructed to proceed with a notice of motion, seeking to strike out these proceedings for want of prosecution, without further notice to you.

      You might further note that on behalf of the [State], I hereby consent to the late filing of the statement of claim by you up to and including 21 days from date hereof.”

Persona responded by delivering their statement of claim within 21 days. Persona’s reliance on the terms of the letter including the consent to the late filing of the statement of claim, was a reasonable position.

(xii) In the special circumstances, because of the nature of the claim of corruption, where it is alleged that the wrongs in this case were concealed, and covert, this approach by the appellants, and indeed by the State, is understandable. The Tribunal was investigating the wrongs claimed by the appellants, it had the resources, and could compel witnesses to advance its investigation into the circumstances of the licence.

(xiii) Of course, the findings of the Tribunal are, under current law, not admissible in the civil proceedings, and the appellants do not seek to admit such findings. However, the investigations of the Tribunal have exposed information, facts, documents, and witnesses of assistance to the appellants. The appellants awaited the completion of the investigative stages of the Tribunal – they did not await the Report.

(xiv) No actual prejudice was found to attach to the State. The learned High Court judge held that:-

      “While no actual prejudice has been referred to, I am satisfied that there is presumed prejudice on a moderate level.”
However, there was no claim of specific prejudice to the State, such as the death of a witness. References as to prejudice were general, such as in the grounding affidavit of Mr. Shaw where he states at paragraph 13 “[w]hile the statement of claim was delivered, I say the plaintiff’s delay has been inordinate and inexcusable and therefore prejudicial […]”. The submissions to this Court have a section on prejudice, where issues such as reputational damage and the difficulty of meeting the award of damages, inter alia, are considered. In fact, in the absence of an evidential foundation for a finding of specific prejudice, e.g. no absence of witnesses alleged, no concrete difficulty alleged, any analysis of the issue of prejudice would be a matter of speculation.

40. In general, it is not open to a party to decide unilaterally not to proceed with proceedings in a case for a particular time and reasons. However, in the interest of fair and just proceedings, there are exceptions. This is one such exception, where in the interests of justice, I find that the delay is excusable.

41. An analogy may be drawn between this case, where there was a unique situation arising from the hearing of a Tribunal and civil proceedings, and the decisions in Cosgrave v. Director of Public Prosecutions [2012] IESC 24 and Kennedy v. Director of Public Prosecutions [2012] IESC 34. While a Tribunal is not the administration of justice the use of that model to investigate matters of public interest may have an effect on legal decisions as to when to advance court proceedings. While there are limitations on a tribunal of inquiry, e.g. the findings are legally sterile, the existence and working of a tribunal are facts which the Court recognises and which may, as in this case, be relevant to the process of litigation.

42. In the unique circumstances of this case, for the reasons given, I am satisfied that the delay is excusable. As I find the delay to be excusable, there are no grounds to dismiss the proceedings.

43. As I am satisfied that the delay is excusable, it is not necessary to proceed to the third aspect of the Primor test, i.e. the test to determine, as a matter of discretion, whether the balance of justice is in favour of or against the proceedings continuing.

44. However, if it had been necessary to consider this aspect of the test, I would have determined, as a matter of discretion, on the facts, that the balance of justice is in favour of the case proceeding. In such a determination I would take into account (i) the fairness to both parties, in all the circumstances, (ii) the absence of specific prejudice to the State; (iii) the fact that the parties and witnesses have over the years given statements and evidence before the Tribunal, so that the situation is not one where proceedings are commenced or continued long after events where there has been no reference to the facts in the meantime; (iv) the delay by the State during the proceedings; (v) the conduct of the State, which was a de facto acquiescence during 2002 to 2006; (vi) the fact that the State stated in a letter of the 31st March, 2006, that a motion to dismiss would be brought if the statement of claim was not delivered within the time period specified and consented to an extension of time for Persona to deliver its statement of claim, and Persona complied with the terms of the letter; (vii) in all the circumstances, there is no risk to a fair trial or serious prejudice to the State; (viii) these proceedings make serious allegations of corruption by a Minister of the Government, not a matter which should be struck out on a technicality but which should be addressed in a full hearing in open court. In submissions it was argued by the State that the appellants’ actions were not in the public interest, but were private commercial interests. However, this is not a case between private companies, rather it involves allegations of corruption by a Minister of State. There is a public interest in determining such a claim of corruption in high office. It is a matter of public interest as to whether a Minister of Government corrupted a State process. This is an important aspect of the case.

45. The parties, in essence, argued the appeal in the Primor principles. It is not an appeal relating to delay in a criminal trial and thus that jurisprudence is not of assistance.

Interests of Justice
46. There was a free standing issue raised as to whether the interests of justice enable the claim to be dismissed. However, Primor pointed out that the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so. Thus, the foundation for this common law is the interests of justice. Primor sets out a methodology. In applying that methodology, in analysing the facts of a case, the Court is required to consider all the circumstances of the case. Consequently, applying the principles described in Primor addresses the interests of justice of the case.

Conclusion
47. On the unique facts of this case, for the reasons given, I would allow the appeals.
JUDGMENT of Mr. Justice Hardiman delivered the 17th day of October, 2012.
I would allow the appeal and refuse to grant the relief sought by the State in its Motions. These Motions are to strike out the proceedings of each plaintiff on the ground of delay, and on the ground of want of prosecution. I would refuse these reliefs because I believe that, in the circumstances of this case the delay of which the State defendants complain, though very long, is excusable.
This being so, on the authority of the decision of this Court in the leading case of Primor Plc v. Stokes Kennedy Crowley [1996] 2 IR 459, there is no basis for dismissing the case and accordingly no need to proceed further to consider the balance of justice as would have to be done if the Court found that the delay was both inordinate and inexcusable.
Accordingly, like the Chief Justice and Mr. Justice McKechnie, I believe that the delay is wholly excusable and dismiss the present application on that ground. The bulk of the judgment which follows is devoted to an exposition of the circumstances which render the delay excusable in the present case.
This case is absolutely unique, without precedent or parallel in the ninety year history of the State. It will be profoundly worrying, indeed alarming, in its implications for Irish public administration if the allegations made by the plaintiffs turn out to be true. But the State defendants say that the action should be stopped here and now, without the merits being decided, on account of delay by the plaintiffs.
It is important to understand the uniqueness of the case. It is not merely unusual or odd. It is not simply a case of a kind rarely met with. It is unique - there is no precedent at all; I have never heard of anything like it in this jurisdiction. The quality of uniqueness is central to my analysis of the law applicable on the present application. Because the case is unique, the decided cases merely supply the general principles to be applied, rather than providing a case directly in point, or a binding precedent. Equally, because it is unique, the present case is unlikely itself to be of much value as a precedent; I do not therefore intend to make general suggestions for the development of our jurisprudence on delay in this judgment. This case does not represent a new category of case: it is simply unique and sui generis.
Certain facts are inescapable. The Government and the Dáil established a public Tribunal of Inquiry into the payment of monies to two named people, one of whom was Mr. Michael Lowry, the former Minister and current T.D. who is alleged in these proceedings to have acted corruptly in the award of a very valuable commercial permit, the second mobile phone licence for Ireland. This Tribunal, some years after its establishment, decided to investigate, as a separate and specific topic, whether or not there had been corruption in connection with the award of the licence. The Tribunal did not consider the evidence against Mr. Lowry implausible. The plaintiffs now wish, if they can, to prove these allegations in Court. But the State defendants, the moving parties in this Motion, wish to dismiss the proceedings without a hearing on the merits, on grounds of delay, and consequent alleged injustice.
I wish to emphasise that the present case is not unique simply because it is based on a claim that a Government Minister acted corruptly, that a public administrative process, designed to be “impermeable to politics” was allegedly corrupted. The principal relevant unique factor is that Dáil Eireann and the Taoiseach, decided to set up a Tribunal of Inquiry which itself decided to investigate the very matter which is at the heart of these proceedings, the award of the second mobile telephone licence. Its inquiry was estimated by the sole member of the Tribunal to be capable of concluding in a year: in fact it took thirteen times that long. But it produced evidence of a money trail which, if capable of being established in legal proceedings, would be extremely valuable to the plaintiffs which evidence (I am satisfied for reasons given below) would not have been available to them by any other means.
This judgment relates to motions by the State defendants to strike out the plaintiffs’ case for want of prosecution and delay in two separate proceedings, those named in the title hereof. I have concluded that it is possible to give a single judgment on these two motions. For convenience, and to avoid any element of unnecessary repetition, I have set out the history and the pleadings in the Comcast case only. But the essential issues are the same in each of the cases. A significant difference between the two sets of proceedings is that the second set, those in which Persona the lead plaintiff, is against the State defendants only: in the other proceedings, those brought by Comcast, the plaintiffs have elected to sue Mr. Michael Lowry T.D. and Mr. Denis O’Brien personally as well as the State defendants. No notice claiming indemnity or contribution has been served by any defendant. Another notable distinction between the cases is that the Persona plaintiffs received correspondence from the State requesting delivery of a Statement of Claim, which they say amounted to an acquiescence in the delay up to that time. In the view which I take of the issues raised by the motions, it is not necessary to consider this individual feature.
Pleadings.
On the 10th October, 2001, the Comcast plaintiffs issued a plenary summons against the defendants in the following form:
“The plaintiffs claim is for:
(1) A declaration that the decision, announced on the 25th October, 1995 to award the second GSM Mobile Telephony Licence to Esat Digifone Ltd. is unlawful, null and void and to no effect;

(2) Damages for:


(3) Interest pursuant to statute,

(4) The costs of these proceedings.”

The wrongdoing alleged against various defendants is set out in the Statement of Claim delivered the 3rd June, 2005, in the following way:
“The Plaintiffs are unable to fully particularise the extent of the wrongdoing of the Minister, pending the conclusion of the investigations currently the subject of investigation by the Tribunal of Inquiry into Payments to Mr Charles Haughey and Mr Michael Lowry (“the Moriarty Tribunal”). However, on the basis of the information disclosed at the public hearings of the Moriarty Tribunal to date, it is clear that the Minister engaged in the following forms of wrongdoing:

      (a) The Minister compromised the integrity of the tender process by breaching the guidelines for communications with bidders:
          i. On August 16th, 1995, while the bids were being evaluated, the Minister met with the chairman of one of the bidders, the Persona Consortium and discussed that consortium’s bid;

          ii. On September 15th 1995, the Minister met with Mr Tony O’Reilly, a representative of another bidder the AT&T consortium, and made reference to that consortium’s bid;

          iii. In September 1995, the Minister met with Denis O’Brien and suggested that IIU Nominees Limited (“IIU”) should become involved in the Esat consortium.
      (b) The Minister, his servants or agents disclosed or caused to be disclosed confidential information in relation to the bid process to Esat;

          i. Esat was informed of the fact that the competition structure was to be changed from a “straight auction” to “beauty contest” and of the extension of the bidding process prior to any such information being disclosed to the other bidders;

          ii. The Minister, his servants or agents, informed Esat of the contents of discussions with the European Commission in relation to the imposition of a cap on the licence fee. Access to this information placed Esat at a significant competitive advantage;
          iii. The Minister, his servants or agents disclosed or caused to be disclosed certain of the weightings to be applied to the evaluation of bids.
      (c) The Minister modified the terms of and unlawfully interfered with the tender process to favour Esat.
          i. The Minister, his servants or agents intervened to ensure the imposition of the cap of £15m on the licence fee;

          ii. The Minister amended the timing of key milestones in the tender process, including the final date by which tender bids were to be lodged. The original closing date for receipt of submissions of tenders was June 23rd 1995. This date was extended to August 4th 1995. The purpose and effect of the extension of this deadline was to favour Esat;

          iii. The evaluation methodology was modified with the aim and effect of favouring Esat.

          iv. The Minister intervened in the substantive evaluation process to ensure that the choice of successful bid was determined other than by reference to the recommendation of the project group;

          v. The Minister failed to conduct any or any appropriate assessment to satisfy himself as to the financial and/or technical capacity of Esat prior to the award of the licence;

          vi. Notwithstanding the Minister’s knowledge that the Esat bid lacked reasonable financial capability, the Minister nonetheless awarded the licence to Esat;
          vii. The Minister expedited the selection and announcement of the successful bid and, in so doing, failed to have any or any adequate regard to the final evaluation report prepared by the external consultants (“AMI”) appointed to advise on the evaluation of bids, which report did not identify a definitive winner. The Minister made a public announcement on October 25th 1995 to the effect that the competition was won by Esat prior to the presentation of the final evaluation report to the Department, and prior to the consideration of that report by the project group;

          viii. The Minister unlawfully procured or facilitated the entry of IIU into the Esat consortium after the submission by Esat of its bid on August 4th 1995. In so permitting a post-submission amendment to the bid, he breached the rules of the tender process;

          ix. The Minister was aware of the involvement of IIU in the bid prior to the award of the licence to Esat. Nonetheless, he failed to take any steps to assess the financial capacity of the Esat consortium to the detriment of the other bidders. No assessment of the financial standing of IIU was conducted by the Minister, his servants or agents, until May 1996, prior to the signing of the licence agreement by the Minister;

          x. The Minister abused his position prior to the award of licence to Esat by intervening with the Electricity Supply Board (“ESB”) to ensure that Esat would be permitted to erect masts on ESB pylons;
      (d) The Minister accepted improper payments made by Denis O’Brien and/or Esat which payments were made to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat.
          i. Subsequent to the announcement of the decision to award the licence to Esat, the sum of US$50,000 was pad, in December 1995, by Esat to an offshore account operated by David Austin, a senior Fine Gael fundraiser. The sum of €50,000 was paid by David Austin to Fine Gael on May 6th 1997. The said sum was repaid on March 2nd 1998. Fine Gael indicated that it could not accept the payment of the sum which Mr O’Brien claimed to have been a donation from Esat. The Plaintiffs contend that the payment of US$50,000 was intended by Denis O’Brien to influence the outcome of the tender process and/or to ensure that Esat was awarded the licence and/or to reward the Minister for having intervened to ensure the warding of the licence to Esat;

          ii. The Minister accepted the sum of €100,000 paid by Denis O’Brien in early/mid-1996. The aim and effect of this payment was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat;

          iii. In July 1996, Denis O’Brien arranged for the payment of £150,000 to David Austin, who transferred the sum of £147,000 to the Minister. The aim and effect of the transfer of funds from Denis O’Brien to David Austin and subsequently to the Minister was to influence the outcome of the tender process and/or to reward the Minster for having intervened to ensure the awarding of the licence to Esat;

          iv. Denis O’Brien financed the purchase of a property in Mansfield, England acquired by the Minister. The aim and effect of the provision of finance for the acquisition of the Mansfield property was to influence the outcome of the tender process and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat.

      And the Plaintiffs reserve the right to deliver further particulars hereof at any time before the trial of this action.
16. Further, the Third and Fourth Named Defendants owed a duty to the Plaintiffs and each of them not to engage in wrongful actions designed to interfere with the integrity of the tender process and to ensure that the licence was, in breach of the rule governing the tender process, awarded to Esat.


PARTICULARS OF UNLAWFUL ACTIONS ENGAGED IN BY THE THIRD AND FOURTH NAMED DEFENDANTS

The Third and/or Fourth Named Defendants caused the payments referred to at paragraph 15(d) above to be made to the Minister in breach of the rules of the tender process and of the provisions of the Prevention of Corruption Act 1906, as amended. The purpose and effect of these corrupt payments was to ensure the award of the licence to Esat and/or to reward the Minister for having intervened to ensure the awarding of the licence to Esat. The Plaintiffs reserve the right to deliver further particulars hereof at any time before the trial of this action.”

The defendants.
    The first-named defendant is the Minister for Public Enterprise which is a corporation sole with perpetual succession. This phrase connotes the office itself, and not the individual holder of the office at the present time, or any previous holder. The office is now denominated the “Minister for Enterprise Trade and Employment”.

    The second-named defendant, Mr. Michael Lowry, is a Dáil Deputy and a businessman. He was Minister for Public Enterprise at the time of certain events set out below in connection with the second GSM Mobile Telephone Licence. He resigned as Minister in circumstances of controversy, unconnected with this action. It is right to add that he has been re-elected to Dáil Eireann at every subsequent election and clearly enjoys the confidence of the voters of North Tipperary.

    The third-named defendant is a limited liability company incorporated in Ireland and was at all relevant times the holding company for Esat Telecom Holdings Ltd.

    The fourth-named defendant Mr. Denis O’Brien is one of the best known and wealthiest businessmen in the State and a major figure even by international standards. At all times relevant to this application he was the principal share holder in a company called Communicorp Group Limited. Through that vehicle he held an interest of between 37.5% and 40% in Esat Digifone, a consortium formed for the purpose of submitting a bid for the mobile phone licence mentioned above. This consortium consisted of Esat Telecom Holdings Ltd., Telenor Invest AS and IIU Nominees Ltd.

    Accordingly, it can be seen that the plaintiffs in the present proceedings make allegations of fraud, misfeasance, deceit and other wrongs against a government ministry, the State itself, the Attorney General, a former Minister and current member of Dáil Eireann, a Company and an immensely wealthy and prominent businessman. It is most important, in the interest of justice, to emphasise what to most readers will be known already: the allegations of actual corruption are made against Mr. O’Brien and Mr. Lowry T.D.: the liability of the other parties for their alleged actions is said to be vicarious or representative.

    Thus, the State is said to be liable for the wrongful acts of the former Minister and the Attorney General is sued in a representative capacity.

    None of these allegations has as yet been proved in any legal forum. The plaintiffs intend to attempt to do so in these proceedings and they have, they say, gathered a great deal of information to this end from the evidence heard in public at the Moriarty Tribunal. The State defendants, however, say that the plaintiffs have delayed too long while doing this and that the proceedings should now be struck out and not permitted to proceed to hearing.

    Background.
    The essential background to this case is that on the 2nd March, 1995 the Minister for Public Enterprise, then Mr. Lowry, announced a bidding process for the award of the second GSM Mobile Phone Licence. Mr. O’Brien’s company, Esat Digifone, was the successful candidate in this bidding process and was awarded the licence on the 16th May, 1996. Mr. O’Brien was then the chairman of Esat. The first-named plaintiffs in each case were amongst the unsuccessful applicants for the licence.
    The licence was correctly regarded as a thing of very great value and indeed it wholly transformed the fortunes of the successful applicant and some of those associated with it. The Company which held the licence was, a relatively short time later, sold on for the enormous sum of €2.3bn . The process of application or tender for the licence was an immensely complicated one and one which was extremely expensive to participate in.
    This process involved the creation, on the 6th March, 1995, within the Public Service, of the “GSM Project Group” which drew up guidelines for dealing with the tenderers during the course of the tender process, and which then conducted these dealings. This Group was also to evaluate the applications which had been elicited by a process of public advertisement. The stated object in creating this Group was to ensure that the evaluation of tenders and the award of the licence would be carried out by a body “impermeable to political influence”. The Group was created under terms of strict confidentiality. A protocol had been adopted to ensure that contact between the decision makers and interested parties occurred only in a formally controlled way. Applicants were to be judged by reference to the rules and evaluation criteria approved by the government and the evaluation was to proceed strictly in accordance with an Evaluation Model and a Weighting Matrix, the latter to reflect the descending order of importance of the criteria to be applied, which were to be adopted prior to the closing date for applications.
    Comcast was party to a joint venture agreement entered into with Radio Telifís Eireann and with Bord na Mona and submitted a tender for the licence on the 4th day of August, 1995 under the name “The Cellstar Group”.
    The plaintiff’s complaint.
    The plaintiffs say the process very briefly outlined above for the evaluation of applicants and the award of a licence, was corrupted by Mr. Lowry T.D. in order to ensure the award of the licence to Mr. O’Brien’s consortium. It is further alleged that this was done by Mr. Lowry T.D. because he had himself been corrupted by Mr. O’Brien by the promise or expectation of payments to him of money or moneys worth. It is a complicating factor in the case that the payments or benefits said to have been acquired by Mr. Lowry T.D. were allegedly acquired largely after the award of the licence.
    The present application.
    What is before the Court at present is a notice of motion on behalf of the Minister for Public Enterprise, Ireland and the Attorney General (“the State defendants”) to dismiss Comcast’s proceedings as against those defendants. The substantive reliefs are set out in para. 1 and 2 of a notice of motion of the 26th May, 2006 as follows:
    (1) An Order pursuant to the inherent jurisdiction of this honourable court, dismissing the within proceedings as against the first, fifth and sixth named defendants for delay and/or want of prosecution.
    (2) An Order, pursuant to the inherent jurisdiction of this honourable court, dismissing the within proceedings as against the first, fifth and sixth named defendants in the interests of justice.”

    The State defendants mentioned were successful in this motion in the High Court and the action against them was dismissed by order of that Court (Gilligan J.) in a judgment dated the 13th June, 2007. This is the plaintiffs’ appeal against that judgment and the order to which it gave rise. The appeal was hard fought and its hearing occupied three days, the 10th, 11th and 12th of July, 2012.
    Overview.
    The State defendants say that the plaintiffs had, by May 2006, simply delayed too long, so long that their claim as a whole should be dismissed by the Court for delay and want of prosecution. This is why they issued the motion of the 22nd May, 2006. They alleged, in particular, that the plaintiffs have delayed too long in delivering their Statement of Claim (which was in fact delivered on the 3rd June, 2005 about 3 years after the plenary summons was served). They say that the plaintiffs have grossly exceeded the ordinary twenty-one day time limit for delivering the statement of claim. The proceedings should be dismissed on that account and “in the interests of justice”.
    The plaintiffs do not deny delay. But they say that, in the unique circumstances of the case, this delay on their part is excusable. They point, in the first instance, to the unique circumstances of the case: they are alleging fraud, deceit and corruption against the State itself, a government department, the individual Minister who then headed the department and who remains a member of Dáil Eireann and against the wealthiest businessman in Ireland, a major figure even on the international stage. They are alleging that the corruption took the form of promised and actual covert payments, bribes in a word, from the businessman or vehicles controlled by him to the Minister or in his interests. Such things, if true, would be utterly disgraceful, destructive of the reputation of both the briber and the person bribed. They say that in consideration of these inducements the Minister cynically corrupted the evaluation and award scheme, designed to be “impermeable” to political influence and changed its rules and procedures so as to ensure that the businessman’s Company was awarded the hugely valuable licence. Corruption of the sort alleged, if proved, is both a civil wrong and a criminal offence, not to mention a commercial and political disgrace of the highest order. It would disgrace the Nation and the State. It is, therefore, the plaintiffs claim, most unlikely to be committed openly, obviously or in a way that is easy to discover or prove. On the contrary, they claim, it was assiduously concealed and disguised by various stratagems. This makes it impossible, they say, to formulate a claim within the time limited by the Rules of Court. The process of investigation needed to establish top-level corruption will, alone, far exceed that time. If the ordinary limits of time were applied to such a case, they argue, it could never be pursued at all.
    They point out that they were compelled to issue the plenary summons in this case to avoid their action being defeated by the statute of limitations which limited a period of six years from the events complained of, from the issue of the summons. The plaintiffs also agree that, having issued the summons, they omitted to serve it for almost the maximum permitted period of one year because their investigations were continuing.
    The plaintiffs deny any prejudice to the defendants which would require the proceedings to be struck out in the interests of justice. The learned trial judge found no specific prejudice.
    The Tribunal.
    The principal point made by the plaintiffs, however, is that at the end of 1997 the Taoiseach of the day, Mr. Bertie Ahern, by Instrument under his hand appointed a Tribunal of Inquiry, whose sole member was the Honourable Mr. Justice Moriarty, to inquire, inter alia, into payments made to Mr. Michael Lowry. The making of these payments, (as well as other things), had been described as a “definite matter of urgent public importance” in a resolution passed shortly beforehand by Dáil Eireann, mandating the establishment of the Tribunal.
    The plaintiffs assert that at all times from the announcement of the award of the licence they had misgivings about the integrity of the process but lacked evidence to prove the bribery and corruption which they say had occurred, precisely because all evidence had been sedulously concealed.
    The plaintiffs do not contend that they are entitled to rely on the findings of the Moriarty Tribunal to establish in evidence, even on a prima facie basis, the facts which the Tribunal found. But they say they are entitled to use the evidence heard by the Tribunal, in public, over a period of years to assist them in producing proof of what they assert happened in relation to payments or other benefits conferred on Mr. Lowry, in relation to attempts to make other payments or benefits to him, and to action taken by him to corrupt the process leading to the award of the second GSM licence. They point out that evidence of this kind was heard on many dates over the years between 2001 and 2010, inclusive. They say that they were entitled to await the development of this evidence, or sufficient of it to enable them to plead their claim. They rely heavily on the momentous fact that Dáil Eireann, and the Executive power of the State, thought it necessary to ascertain the facts about payments to Mr. Lowry and that they are entitled to rely on the evidence developed, in public, using compulsory processes not available to private interests, before this solemn tribunal.
    To this the State defendants say that the plaintiffs have no such entitlement. They say that the Tribunal was established in the public interest and for the public good. There is no entitlement to use its processes to support a private action brought for private financial gain, and therefore were not entitled to wait for those processes to produce evidence. They agree that the plaintiffs are entitled to litigate but they say that right is confined to those who litigate in accordance with the Rules of Court and in a timely manner. The plaintiffs have not done this. The State defendants emphasise that it is now some sixteen years since the award of the relevant licence and claim that it may be up to twenty years from that award before the litigation could come on for hearing. This is wrong, they claim; it deprives them of the right to fair litigation and to a fair trial. On its being raised, - they conceded that, in other classes of litigation, the State itself has asserted a right to proceed after as long a period, or even after periods more than twice as long, but they say that this should not be held against the State in the present application because the State defendants here cannot be expected to stand over every action the State has been engaged in.
    The State defendants also claim that the plaintiffs had available to them various procedural options which might have enabled them to plead their case without awaiting the evidence heard before the Tribunal. It is said that they could have “sought pre-Statement of Claim Discovery of documents”; secondly, they could have applied to the Court to stay their own proceedings, it is said.
    It appears to me that these submissions are wholly lacking in reality. The corruption alleged in this case was covert, devious and concealed. Foreign entities were, it is said, used to channel money to Mr. Lowry. The main relevant information developed at the Moriarty Tribunal over a long period of years related to a money trail. The evidence related to a series of transactions which, in the view of the Moriarty Tribunal, demonstrated monies being paid to Mr. Lowry. As Clarke J. says in his judgment about to be delivered, “a significant degree of forensic disclosure from financial institutions and others with the benefit of the significant powers of compellability which are available to a Tribunal of Inquiry” was required to establish these transactions.
    In my view it is ludicrous to think that the persons and entities who went to great trouble to hide what was allegedly done would willingly supply evidence of it on discovery or otherwise. Accordingly, I agree with Clarke J. that “it was not unreasonable for Persona and Comcast to conclude that discovery was unlikely to produce the necessary detail and that it was much more likely that any such detail would, if it existed, become available through the Tribunal”.
    The remit of the Tribunal.
    The tribunal whose processes are relied upon by the plaintiffs was established by the Tribunals of Inquiry (Evidence) Acts 1921 and 1979 (No. 2) Order 1997. This Order was made under the hand and seal of the Taoiseach on the 26th September, 1997.
    The Order first recited a resolution which was passed by Dáil Eireann on the 11th September, 1997 and by Seanad Eireann on the 18th September, 1997. Insofar as relevant this resolution said:
            “Bearing in mind serious public concern arising from the Report of the Tribunal of Inquiry (Dunnes Payments)… which established that irregular payments were made to and benefits conferred on certain persons who were members of the Houses of the Oireachtas between 1 January 1986 and 31 December 1996…

            Resolves that it expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act 1921 as adapted by or under subsequent enactments… to inquire urgently into and to report to the clerk of the Dáil and make such findings and recommendations as it sees fit in relation to the following definite matters of urgent public importance: …
        (e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Lowry or due by any Company with which he was associated or due by any connection to a connected person of Mr. Michael Lowry… during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential the discharge of such office.

        (f) The source of any monies held in [a number of named banks] in accounts for the benefit or in the name of Mr. Lowry or any other person who holds or has held a ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Lowry…

        (g) Whether Mr. Lowry did any act or made any decision in the course of any ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who is the source of any money referred to in paragraph (f) or any other person in return for such payments being made or procured or directed any other person to do such act or make such decision…”.

    It is thus established that, in the calendar year following that in which the second GSM licence was awarded, the Houses of the Oireachtas, and the Executive, considered it appropriate to establish a Tribunal of Inquiry to look into payments to Mr. Lowry and whether these payments were made for the purpose of, or actually did, influence him in the exercise of his public functions. The Terms of Reference themselves did not expressly mention the procedures leading up to the award of the second GSM licence, but they are plainly capable of extending to those matters. The questions set out as part of the Tribunal’s remit were declared to be matters of urgent public importance.
    Relevance of Tribunal to this litigation.
    Consequent on the passing of the Resolutions referred to above in the Houses of the Oireachtas, and on the establishment of the Tribunal by Instrument of the Taoiseach, it was clear in September, 1997 that the question of payments to Mr. Lowry, the effect they had, and the purpose for which they were made, was going to be investigated by a public statutory Tribunal of Inquiry. This is the most radical, thorough going, and fully empowered mechanism of investigation available to the State.
    The Plaintiffs’ thinking.
    According to the affidavit of Damien Young, a solicitor in the firm acting for the plaintiffs, at the time of the issuing of the plenary summons his clients believed that the award of the second GSM licence to Esat Telecommunications Ltd. was wrongful. However, he says, “the plaintiffs were not in a position to know the detail of the manner nature and extent of the breaches of the tender process. They hoped that this detail would be clarified by the Moriarty Tribunal, permitting the delivery by the Plaintiffs of a particularised “Statement of Claim”. Mr. Young goes on to say that the Statement of Claim was eventually delivered, in June 2005 “in response to an application to strike out the plaintiffs proceedings brought by the fourth-named defendant (Mr. O’Brien).” Mr. Young says that the Plaintiffs wished to await the outcome of the investigation of the Moriarty Tribunal but they were constrained to file the Statement of Claim because of the making of an order that the proceedings would be struck out if one were not filed within four weeks. This occurred more than five years before the conclusion of the Tribunal.
    Mr. Young repeats that the Statement of Claim made it clear that the plaintiffs were unable fully to particularise the extent of the wrongdoing of the Minister, pending the conclusion of the investigations of the Moriarty Tribunal. He goes on to make the case that the:
            “… delay is excusable by reference to the fact that the subject matter of the proceedings is also the subject matter of continued investigation by the Moriarty Tribunal. The complexity of the subject matter of these proceedings is evident from the time taken by the Moriarty Tribunal in investigating this matter. The plaintiffs… cannot have been expected to be aware of all the details of the improper payments and conduct which [the plaintiffs] believed to have resulted in the award of the second mobile phone licence to [Esat]. In the circumstances it was reasonable for the plaintiffs to await the information provided by way of public hearings at the Moriarty Tribunal prior to delivery of the Statement of Claim”.
    The Tribunal’s focus.
    In fact, as outlined at the hearing of this appeal, it was in May 2001 that the Tribunal decided specifically to investigate the circumstances of the awarding of the second mobile phone licence. This was highly significant from the plaintiffs’ point of view because they had to issue their proceedings very shortly in order to avoid being defeated by the Statute of Limitations. The Tribunal’s decision seems to have followed the publication of an article by Mr. Matt Cooper in March of 2001. This article discussed a payment of $50,000 made by Telenor, part of the successful Consortium in the license application, to the Fine Gael party (as opposed to Mr. Lowry personally). The significance of this subject in the Tribunal’s decision to investigate the second GSM licence transaction is set out at Chapter 60 of the Tribunal’s Report. Par. 60.01 records:
            “What led the Tribunal to investigate the decision made on the 25th October, 1995, that Esat Digifone had won the comparative valuation to select a second GSM operator, and the subsequent grant of the licence to Esat Digifone on 16th May, 1996, was the evidence of the commencement, shortly thereafter, of the process whereby payments were made by Mr. Denis O’Brien to Mr. Michael Lowry in clandestine circumstances. The steps taken to effect the initial payment arose less than seven weeks after the licence was granted, and the payment was made out of the proceeds of the very first tranche of funds available to Mr. O’Brien, after he had successfully completed a placement on the U.S. market, to finance his participation in Esat Digifone. That payment was routed through a series of off shore bank accounts, commencing in the Isle of Man, moving to Jersey and terminating back in the Isle of Man, in an account in the name of Mr. Lowry, but was reversed on the appointment of the McCracken Tribunal”.

    It thus appears that the remit of the Tribunal from September 1997 was broad enough to include the events leading to the award of the second GSM licence, and any payments made in that connection. In May 2001, moreover, it became clear that the Tribunal intended to investigate that specific matter and it proceeded to do so (though not of course continuously) on various dates over the next nine years. The effect of this on the position of the plaintiffs, who are alleging covert payments to Mr. Lowry leading to a corrupt granting of the second GSM licence, is at the nub of these proceedings.
    Did the defendants know?
    There was uncontradicted evidence on this application that the plaintiffs, personally or by lawyers acting for them, attended at virtually all relevant sittings of the Tribunal over a period of years. It was also asserted that at one of these sittings Mr. Mathew Shaw, a State Solicitor, met Mr. Gerald Moloney, a solicitor acting for the plaintiffs, and asked him whether he would soon be delivering his Statement of Claim. Mr. Moloney replied that they would be awaiting the evidence heard at the Tribunal before doing so. On the hearing of this appeal it was said on the part of the State that they were not in a position to deny this conversation but, as a matter of law, the State take the view that the nature of a Tribunal of Inquiry is so different to that of civil proceedings that there is no relevance at all to the latter in the fact that a tribunal may be investigating the very same matters which are the basis of the civil proceedings. It is to this topic that I will shortly turn.
    I believe it is abundantly clear from the evidence in this case that the State defendants were affirmatively aware, at all material times, that the plaintiffs intended to await the evidence at the Tribunal before delivering a Statement of Claim. The State has not denied this. The plaintiffs said precisely this to the State solicitor who asked about the Statement of Claim. There is no other conceivable basis for the State’s action in cross-examining a Persona representative who gave evidence at the Tribunal along the lines that his company was using the Tribunal as a “stalking horse” for these proceedings.
    Since the State was in fact affirmatively aware of what the plaintiffs were doing, I do not think it necessary to discuss whether (as the State contends) the plaintiffs should have put their position in writing to the State. That question might have been central had the conversation between Mr. Moloney and Mr. Shaw been denied, but it is not denied or glossed. Nor did Mr. Shaw say that he placed no significance on the statement of Mr. Moloney, or that the conversation was of a casual nature. In my view it cannot be gainsaid that the State knew exactly what was going on at all material times. Since that is so I do not consider that the contention that the plaintiffs should have informed the State defendants (of what they knew anyway) in some more formal fashion has any merit or relevance.
    Nature of the Civil Proceedings.
    In the course of argument on this appeal Counsel for the State defendants said that the public interest in establishing whether or not payments had been made to Mr. Lowry and whether he had taken any improper action on foot of them, was met by establishing Tribunal of Inquiry. This body was acting in the public interest. He did not say whether the State accepted the findings of the Tribunal, but he did not contradict them. The present proceedings, in contrast to the Tribunal, were (he said) entirely private proceedings aimed at securing a private benefit. Accordingly there is no entitlement to use the evidence given at the Tribunal in the civil action: they are quite different procedures in their nature, wholly unconnected with each other in nature and purpose. There is therefore no entitlement to await this evidence before furnishing a Statement of Claim, so the delay caused by doing so is not excusable.
    I do not consider that so rigid a distinction can be drawn between a public statutory procedure, here a Tribunal of Inquiry, on the one hand, and a civil action on the other hand. This topic was to some extent considered in this Court in the case of Grant v. Roche Products (Ireland) Ltd.
    [2008] 4 IR 679. There, the plaintiff had brought a fatal injuries action claiming that his son had committed suicide following his taking of a prescription drug marketed by the defendants and prescribed for him by a consultant Dermatologist. He claimed the drug had caused his son to become extremely depressed and withdrawn as a result of which he committed suicide. He said that depression was a known side defect of the drug.
    The defendants brought a motion to strike out the proceedings. They said they had already offered to pay the plaintiff the full value of the action, thereby satisfying his claim for damages. In those circumstances, they claimed, the continued prosecution of the action was an abuse of process. However, the plaintiff refused their offer because it offered only financial compensation: the defendants accepted no liability for the death of the plaintiff’s son.
    In this Court, it was held that the plaintiff’s action fell to be approached in the context of the Constitution. Reference was made to Article 40.3 and to the State’s undertaking “in its laws to respect and… by its laws [to] protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”.
    The Court went on to hold that the fatal injuries action was not merely a device for obtaining a payment but was a method whereby the right to life of the deceased could be vindicated. It was, in fact, “the only legal step capable of providing vindication for an alleged injustice”. This conclusion was reached in the light of both the Irish and English texts of the Constitution, considered at paragraphs 69ff of the judgment in the Grant case.
    Of relevance to the present case is what is said at para. 77 of the Report in Grant:
        “I wish specifically to reject a central proposition upon which the Roche defendants relied, that the vindication of personal rights is a matter only for the ‘criminal or regulatory’ law and not civil law. This highly artificial distinction has no basis in the Constitution or in the law itself. Above all, it does not conduce to justice which, by Article 34.1 of the Constitution is what the Courts are to administer. On the contrary, it has been recognised at least since Meskell v. CIE [1973] IR 121, at 132/3, that constitutional rights are capable of enforcement by action ‘even though such action may not fit into any of the ordinary forms of action in either common law or equity’, thereby plainly and necessarily establishing that the ordinary forms of action may be used to enforce such rights where possible. Still more explicit than the dictum of Walsh J. quoted above is that of Henchy J. in Hanrahan v. Merk Sharpe and Dohme (Ireland) Ltd. [1988] ILRM 629 when he said at 635/6:

            ‘I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State’s duties under those provisions as to the personal rights and the property rights of the plaintiffs as citizens’.
        This is an absolutely express statement of the role of the law of tort in implementing the State’s duties under Article 40.3 and the Personal Rights Articles of the Constitution”.

    I would also refer to the other dicta and the authorities cited on this point in Roche without thinking it necessary to set them out here.
    I would, accordingly, reject the contention made towards the beginning of the State’s answer in the oral argument of this appeal that it is inadmissible for the plaintiffs to seek to derive benefit from the proceedings of the Tribunal because the Tribunal is a body established in the public interest and the present proceedings are purely private proceedings directed at ensuring a private benefit. I am indeed surprised that this argument was made having regard to the relatively recent decision of this Court in Grant. The law of tort and the whole area of civil law is available for the vindication of constitutional rights, including property rights, where appropriate. The fact that these forms of action are available in the law of the State is a discharge by the State of the obligations set out in Article 40.3 of the Constitution. If they were not so available, the State would have to make some other mechanism available to vindicate those rights. Manifestly, if the plaintiff’s allegations are correct there can be little doubt that they have been the victims of an “injustice”. Their capacity to bring a civil action in that regard is directed at the “vindication” of their rights in light of that injustice.
    Primor v. Stokes Kennedy Crowley.
    This Court in Primor plc v. Stokes Kennedy Crowley [1996] 2 IR 459 set out an authoritative test for approaching a defendant’s motion for dismissal for want of prosecution, and I intend to follow it here. The Court summarised the relevant law as follows:
      The courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
      It must, in the first instance, be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;

      Even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;


    This overall approach has been endorsed in such subsequent cases as Stephens v. Flynn Ltd. [2005] IEHC 148 and Desmond v. MGN Ltd. [2008] IESC 56.

    If a defendant cannot show that the delay was both inordinate and inexcusable, then “there are no real grounds for dismissing the proceedings” (Primor at 468). In Primor, the Court found that the plaintiff’s delay was inexcusable, in part because the delay was caused by mismanagement. (Ibid at 477). The Court in Primor also held that the fact that the plaintiff’s case was very complicated was not itself enough to excuse the delay. (Ibid at 478). Here, the delay was not the result of mismanagement or complexity of material; instead, the plaintiffs delayed in order to hear the evidence publicly elicited by special statutory powers at the Moriarty Tribunal, which evidence they needed in order to particularise the details of their allegations, because, they say, many of the key facts of the case were deliberately and artfully concealed. Furthermore, in regard to a subsequent two year delay in Primor, Hamilton, C.J. held that “...there is more basis for excusing the two-year delay in the preparation of the affidavit of discovery than for the two-year delay which rose arose at an earlier stage in the preparation of the reply to notice for particulars” because the preparation of the affidavit was a “mammoth task” involving well over 200,000 documents . (Ibid at 479). The plaintiffs’ situation here is much closer to this more excusable delay because they were waiting for evidence to emerge at the Moriarty Tribunal, which were delayed because of the unexpected breadth of the inquiry, the vast number of documents considered, the viva voce evidence of many witnesses, and legal action by various parties aimed at limiting the scope of the Tribunal’s inquiry.
    Hamilton C.J. also pointed to the High Court decision in the associated case of Primor plc v. Oliver Freeney & Co. which held that the plaintiffs delay was excusable due to the length of the case as well as the “...enormous task which faced the plaintiff and to the number and complexity of the documents involved.” (Ibid at 484). But that will not always, i.e. of itself, be an excusing factor, and was not so in Primor. Here, however, not only was the task of gathering evidence enormous and complex, but those performing it were wholly outside the plaintiffs’ control, so there was nothing the plaintiffs could have done to speed the process. As this court has said previously, it is proper that regard should always be had to the Rules of Court but it must be remembered that the rules are there to help in the administration of justice, and not as an end in themselves. (Ibid at 516).
    In the two associated (and jointly reported) Primor cases, the High Court had in each case ruled against the motion to dismiss and permitted the litigation to proceed. These decisions were, on the facts of that case, overturned by the Supreme Court for reasons which are pithily summarised in the judgment of O’Flaherty J., at p.516:
            “The defendants are simply not able to make their defence for the diverse reasons already referred to but, especially, because of the fact that so many essential witnesses are either dead or beyond the reach of the courts”.

    On the hearing of this appeal there was no suggestion that any important witness was similarly unavailable. Like all these cases, Primor turned on its own facts, as this case must. Apart from the fact that there was no contention here about prejudice due to dead or otherwise unavailable witnesses, there are the following obvious points of distinction with Primor:
    (a) Primor was a negligence action, albeit a complex one; this is an action for fraud, deceit, misfeasance in public office and corruption. Accordingly, the plaintiffs face problems much greater than those arising simply from complexity and have to deal, allegedly, with concealment of evidence and deliberate falsehoods.
    (b) Although a considerable time elapsed between the service of the plenary summons in 2002 and the delivery of the Statement of Claim in 2005, during the whole of that period, the question of alleged payments to Mr. Lowry in connection with the second GSM licence was actively and specifically under investigation by the Moriarty Tribunal. All known parties with relevant evidence to give were examined in that forum and, more specifically, all known State employees with relevant evidence made statements for the purposes of the Inquiry and cooperated with the State’s own legal advisers. Most or all of these witnesses were cross-examined. Accordingly, all known relevant witnesses in relation to the State’s dealing with the second GSM licence have been thoroughly questioned both in public and in private and their evidence and recollections preserved. On the hearing of this appeal this was not gainsaid.

    (c) In all the circumstances, the plaintiffs’ case cannot be regarded either as implausible or as impossible to defend due to lost evidence or witnesses.

    In Hogan v. Jones [1994] 1 ILRM 512, Murphy J. had this to say at p.158 of the Report:
            “The draconian penalty of dismissing proceedings as against a particular defendant in circumstances which wholly defeat that claim of the plaintiff is not an order which is made with a view to punishing a party for his dilatoriness in proceeding with the action or for his failure to meet some artificial regime. The order is made only when it is necessary to protect the legitimate interests of the party sued and in particular his constitutional right to a trial in accordance with fair procedures”.

    In this case, too, the remedy of dismissing the plaintiffs’ claims would indeed be a “draconian penalty”. It is of course true to say that there are many cases where delay of the length found here would be wholly inordinate and there will be some of those cases where it is inexcusable as well. But the unique nature of this case, and the unique difficulties of each plaintiff in pleading and proving what it says, must also be considered. To impose on a case of such complexity, with the subject matter allegedly characterised by concealment and deceit, the same twenty-one day period for delivery of a Statement of Claim as applies to a perfectly simple running down action, or any limit of that order, would indeed be to impose an “artificial regime”, and in my opinion an unjust one. To these general observations must be added the fact that the authorities of the State have considered that the question of payments to Mr. Lowry, if any were made, and the question of why they were made, and the question of what, if anything, was done in consequence of their being made, merited a public inquiry. This inquiry was of such complexity that (together with other topics) it occupied in total more than fourteen years.
    In the absolutely unique circumstances of this case I consider that the plaintiffs were entitled to hear and consider the evidence which was led before the Tribunal prior to pleading their case. It must be emphasised that, at the start of the Tribunal’s deliberations, it was officially estimated that its work would take a year. It is not the doing of the plaintiffs that that estimate was exceeded by so large a factor. The State defendants have not argued this period of time was excessive: they argue that the plaintiffs were not entitled to await the evidence developed at the tribunal at all.
    What were the plaintiffs to do except await the evidence at the Tribunal? The plaintiff companies knew that there would be evidence about payments to Mr. Lowry in the precise context which was relevant to their case, heard by the Tribunal, evidence produced in the main by compulsory processes unavailable to them. To proceed before that evidence had been developed was to risk the dismissal of their actions for lack of evidence, or for delay in furnishing particulars, as in Primor. If this had happened, and the Tribunal had later reported as it actually did, the law itself would, in my view, have been brought into disrepute.

    I find that the plaintiffs’ delay here is manifestly distinguishable from that in Primor, and that the plaintiffs’ delay was excusable due to their unique situation and lack of other legal remedies. Because the plaintiffs delay was excusable, there are (following Primor) no grounds for dismissing the proceedings, so it is not necessary to examine the “balance of justice” arguments advanced.

    Comparisons and the interests of Justice.

    Counsel for the State cited a passage from my judgment in Kennedy v. Director of Public Prosecutions (Supreme Court, unreported, 7 June, 2012). It was this:

    “A Tribunal of Inquiry is not a method of gathering evidence for a criminal prosecution and should not be regarded as such. On the contrary, it is a special form of inquiry in which the rights of citizens are very gravely abrogated and is purely for the purpose of allowing a non-binding opinion to be expressed on ‘definite matters of urgent public importance’.”

    The passage relied on was a comment on a passage in the judgment of the learned trial judge in Kennedy, in which he had stated that even if the delay in that case had been both inordinate and inexcusable he would still have been satisfied “that the balance of justice would demand that these proceedings be allowed to take place”. This was because, he said:

            “The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The State has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials.”
    I adhere to what I said in Kennedy and I am quite content to repeat it here. It would be quite wrong to establish a Tribunal of Inquiry as a means of obtaining evidence for criminal proceedings, or for civil proceedings. But that is not what occurred in this case. The Oireachtas and the Executive established a Tribunal of Inquiry because it considered that certain matters, including payments to Mr. Lowry, required to be investigated as “a definite matter of urgent public importance”. It was not suggested, and would have been irrational to suggest, that the Tribunal of Inquiry was established for the purpose of finding evidence for proceedings, civil or criminal. But once the Tribunal was established, and in particular once it decided to investigate the competition for the second mobile telephone licence, it became clear that the Tribunal was going to hear evidence which was of great relevance to the question of whether Mr. Lowry had been bribed in connection with that competition, and what if anything he did on foot of any payments. This was, of course, the nub of the civil action.

    The position seems to me analogous to that which is exists where a plaintiff is taking an action for damages for personal injuries, or a person’s dependence on taking a fatal injuries action, in respect of the consequences of a traffic accident or an industrial accident. If there is reason to believe that the accident has caused death or serious injuries there may very well be a prosecution for alleged breaches of the Road Traffic Acts or the Health and Safety at Work Acts. Such prosecutions are not instituted by the public authorities for the purpose of producing evidence for a civil action. But it is extremely common for the Solicitor acting for the plaintiff in the civil proceedings to attend the criminal trial with a “watching brief” to see what happens and in particular to see what evidence is available that might assist him in the civil action. There is nothing wrong in his doing so and it might, indeed, in certain circumstances be said that it would be negligent not to do so. Even if there is no prosecution the fruit of a garda investigation into a traffic accident can be made available to a plaintiff in civil proceedings in the form of a “garda abstract”.

    In the examples I have given, it is usual that a criminal prosecution (especially a summary prosecution) would be concluded in a relatively short period, much shorter than it would normally take to have a trial of a civil action arising from the same facts. The real difference between the examples I have given and the present case is that the Tribunal of Inquiry took an extraordinary period of time to complete its work. This period of time was some thirteen or fourteen times longer than had originally been officially estimated. But, as I have already said, the State did not argue on the hearing of this appeal that the Tribunal had taken too long, or that the length of the Tribunal’s proceedings disentitled the plaintiffs’ from relying on the evidence generated: instead they made the point that the plaintiffs were not entitled to await the hearing of evidence at the Tribunal at all.

    It seems to me to follow from the foregoing that the passage cited from the judgment in Kennedy is simply irrelevant to the present circumstances. Indeed, Kennedy and Cosgrave were cases where the State itself is relying, in criminal prosecutions, on evidence which first emerged at a Tribunal of Inquiry. There does not seem to be any reason why they should not do this.

    Kennedy and the associated case of Cosgrave v. D.P.P. (Supreme Court unreported 26 April, 2012) were cases where it was proposed to put elected officials, such as Mr. Cosgrave, on trial for taking bribes, and to try Mr. Kennedy for allegedly providing the money to bribe them. These proposed trials were totally dependent on the evidence of a self-confessed guilty party, Mr. Frank Dunlop, who was alleged to have passed on the bribes in particular contexts. The offences alleged were said to have occurred between 1992 and 1998. Mr. Dunlop had told the Flood Tribunal, a close contemporary of the Moriarty Tribunal, that he had made these payments by way of bribes. This statement was made in October, 2000. However, Mr. Cosgrave was not charged until October 2010, and Mr. Kennedy was charged in the same month. The criminal proceedings were thus initiated between twelve and eighteen years after the events complained of and the trials have yet to take place.

    The delay in charging these defendants related to the State’s desire that Mr. Dunlop would himself be prosecuted before being produced as a State witness, and that he would give evidence in other State proceedings. The delay which this involved, which arose directly out of his evidence to the Flood Tribunal, was not considered to preclude the proceedings against Messrs. Cosgrave and Kennedy when these were eventually brought forward, after a delay similar to but longer than that found in the present case.

    Although the State relied on the passage cited above from my (dissenting) judgment in Kennedy, it showed no awareness at all of the general context of Kennedy and Cosgrave nor of the myriad other “delay” cases in which the State has been involved for upwards of a decade now, roughly from JO’C v. D.P.P [2000] 3 IR 478 onwards. In those cases, unlike the present one, the State has typically been involved as the prosecutor or moving party and in that capacity it has consistently averred that trials of disputed allegations, often of child sexual abuse, can fairly be had after periods much longer than what is in question in this case, and including periods in excess of forty years. In the week in which this judgment was largely drafted, the Court heard an appeal by the State against an order restraining prosecutions of allegations relating to a period between forty-seven and thirty-nine years previously.

    When asked about this apparent inconsistency of approach Counsel for the State responded, a little impatiently, that he could not be expected to stand over the conduct of every single delay case. This is undoubtedly true and it would have been most unfair to ask him to do so. But he was not, of course, asked to do so. He was asked to address the existence of separate, different and inconsistent State attitudes in a large category of cases over a period of many years, where the State was the moving party, by contrast with that adopted in the present case where the State is amongst the defendants.

    In the great bulk of the criminal cases in question, there is little or (more usually) nothing at all in the way of documentary or forensic evidence with which the unaided memories of witnesses can be controlled or compared. This case, on the other hand, is by comparison a very highly documented case. It is not to be expected that persons who give or receive bribes will knowingly permit a documentary record of bribes described as such to come into being or to continue to exist. But the processes leading to the evaluation of the tenders for the second mobile phone licence, and the award of that licence, are highly documented, as the report of the Moriarty Tribunal demonstrates. So, it appears, is the money trail which that Tribunal exposed.

    The fact is that the State has consistently argued, over a period of many years, that a trial of gravely serious allegations can fairly be had after periods which far exceed what is in question in this case. The allegations in such cases will have appalling consequences for the person against whom they are made if they are found to be true, usually including prolonged imprisonment, financial ruin, total destruction of reputation, and familial and professional disintegration. This record itself makes the State defendants’ protestations of injustice in this case ring hollow. The allegations of prejudice are completely general in nature and the learned trial judge expressly held that there was no specific prejudice.

    In my view the State defendants in the present case have entirely failed to engage with the extensive jurisprudence on prejudice to fair litigation arising from delay in both civil and criminal cases, and have simply ignored the State’s own repeated contentions that, in the great majority of cases at least, a properly conducted trial can obviate any prejudice which might arise from lapse of time. I do not consider that they have demonstrated any prejudice which would require the Court to strike out these proceedings in limine.

    It is most unsatisfactory that the State has, in criminal proceedings, asserted a right to proceed after periods of delay which dwarf those in question in this case, while maintaining that the latter periods absolutely preclude a fair trial for the State defendants. Counsel for the State did not seem conscious of any inconsistency in submitting, as they have in this case, that the periods of delay here are such that, in themselves, they demonstrate that there cannot be a fair trial of the allegations. They say this on the assumption that the trial would take place about twenty years after the award of the second mobile telephone licence.

    The law officers of the State, the Attorney General and the Director of the Public Prosecutions are of course independent in the discharge of their functions. But if our jurisprudence is, even remotely, to approach coherence there must be some consistency of approach between the different arms of the State. The present case is a complex one and requires to be proved to the civil standard of proof. But it is also a case with a very great volume of relevant documentation, that is it is a case which does not depend solely on the memories of witnesses. Equally, it is a case which is not afflicted by the unavailability of witnesses due to death or departure, as Primor was. I do not consider that the fact that a criminal case requires to be proved beyond reasonable doubt is capable of explaining the inconsistent approaches which this case reveals.

    It reflects no credit on our polity that the State has, within the same very short period of time, argued that the lapse of time between 1995 and the present wholly precludes the prospect of a fair trial of the allegations made against the State defendants. But within a few weeks advancing that contention the State, as noted above, sought to overturn the High Court judgment where a trial of a criminal allegation had been prohibited on the basis of a lapse of time of between thirty-nine and forty-seven years.

    The question of alleged prejudicial delay is not, at least directly, relevant to the issue of excusability. But it might be argued that delay which causes prejudice cannot be excusable. The State have made no showing whatever of prejudice of any specific sort, though in other cases the State Authorities insist that a citizen trying to prevent the State from proceeding against him after forty years must do just that.

    The State have in this case relied on a view of the effect of lapse of time on the potential for fair litigation which simply ignores the elaborate jurisprudence on the topic developed largely in response to the State’s own policy of litigating certain cases many years, sometimes decades after the cause of action has arisen. The State defendants’ failure to refer to, much less engage with, this line of authority implies an unspoken suggestion that the State should be treated differently to the individual citizens as litigant. I reject this as unstatable and inconsistent with the concept of legal equality.

    It is true that the litigation of very old issues, civil or criminal, is usually permitted on the basis that the subject matter is exceptional. This, however, has not prevented such litigation becoming very common.

    The subject matter of this litigation is truly exceptional, indeed unique. There has never been anything like it. If the plaintiffs have indeed been damnified by corruption at the highest levels of government and public administration, it is clearly a requirement of basic commutative justice that they be compensated - if they can make out their case. In doing this the findings of the Moriarty tribunal are inadmissible. But the evidence developed over nine years is not irrelevant and is publicly available to the plaintiffs as to any other citizen and to the State itself. The State does not appear to have rejected or criticised that evidence.

    In my view a State which, having set up a public Tribunal to investigate payments to Mr. Lowry and what if anything he did in return, and having seen that Tribunal decide to investigate the specific issue of the second mobile telephone licence, cannot preclude a litigant from relying on the evidence the Tribunal had developed over many years. The position might be different if the plaintiffs case were manifestly implausible, but that has not been suggested in the present appeal. In my view the integrity and reputation of the Nation, as well as the rights of the plaintiffs require that this action be not terminated without a hearing, as the State propose.

    I would allow the appeal and refuse the relief in both motions.

    JUDGMENT of Mr. Justice Fennelly delivered the 17th day of October 2012.

    1. I agree that the appeals in these cases should be allowed. I agree with the reasoning in the statements of reasons given by the Chief Justice and by McKechnie J and Clarke J. However, on the question of the treatment of the delivery of a 21 day letter by the Office of the Chief State Solicitor in the Persona case, seeking delivery of a statement of claim within 21 days under threat of a motion to strike out in default, I prefer the reasons of the Chief Justice and of McKechnie J.

    2. More generally, I would emphasise that the delay of both plaintiffs was, as is accepted, on any view, inordinate. That delay was, however, in the special and unique circumstances of this case, excusable. In the vast majority of cases, this Court would regard it is quite unacceptable that a party should take a deliberate decision to delay indefinitely in the pursuit of his or her claim, certainly where no fair notice is given to the opposing party.

    3. The case of Desmond v. M.G.N. Limited [2009] 1 IR 737 indicates the approach that will normally by taken by this Court. The plaintiff issued proceedings for libel against a newspaper in January 1999. He took no further step until February 2005, when he notified the defendant that he would give notice of intention to proceed. The defendant issued a notice of motion seeking an order striking out the proceedings on the grounds of inordinate and inexcusable delay. The plaintiff claimed that the reason for the delay was that he had acted on legal advice not to progress the proceedings, given that the matters to which the proceedings related formed a substantial part of the subject matter of the Moriarty tribunal. This decision was not communicated to the defendant, who had taken the view that the proceedings were dormant.

    4. Although the three members of the Court were divided on the question of where the balance of justice lay and the fact the action was for defamation in which a plea of justification had been filed was the determining consideration for the majority, the Court was unanimous in its view that the delay had been both inordinate and inexcusable. All three judges strongly criticised the plaintiff for “failing to proceed with his action for his own tactical reasons….. without giving any notice of his intention to the defendant…” (Geoghegan J page 741); for the fact that “the defendant was never informed of the plaintiff's decision to "park" the case nor was it invited to acquiesce in it.” (Kearns J page 752). Macken J said at page 759:

        “It is certainly a telling factor against excusing delay, if a party retains to himself, as the plaintiff did here, the right unilaterally to take no further steps in the proceedings for an indeterminate period into the future without, as a very minimum, notifying the other party of his intention to do so.”
    5. Ordinarily, I would have been strongly disposed to dismiss the claims of all the plaintiffs on the ground of inordinate and inexcusable delay. However, the present case is distinguishable for the reasons given by the other members of the Court. I refer, in particular, to paragraph 66 of the Judgment of McKechnie J. I would mention three matters. Firstly, the plaintiffs have convincingly argued that the material upon which they wish to found their claims was, of necessity and in its nature, such as was likely to be concealed and that it was most unlikely that any private litigant, who would not have the advantage of the investigate powers of the Moriarty Tribunal, would have been able to uncover it. As Hardiman J says in hus judgment, “the corruption alleged in this case was covert, devious and concealed.” Clarke J says that “it is clear that establishing the series of transactions which, in the view of the Moriarty Tribunal, demonstrated monies being paid to Mr. Lowry, involved a significant degree of forensic disclosure from financial institutions and others with the benefit of the significant powers of compellability which are available to a tribunal of inquiry.” Secondly, there is strong evidence to suggest that the defendants, in particular the representatives of the State, were fully aware and conscious of the fact that the plaintiffs were awaiting the investigations of the Tribunal, but took no action to compel the plaintiffs to proceed with their claims or to have them dismissed for want of prosecution. Thirdly, in the Persona case, the State Solicitor wrote a letter seeking delivery of a statement of claim, which must be read as consenting to the action proceeding to that stage.

    6. Thus, I concur in the decision to allow the appeals.



    Judgment of Mr. Justice William M. McKechnie delivered on the 17th day of October, 2012.

    Background:
    1. The award of the second GSM licence in this country, has given rise to a great deal of public and political debate ever since the announcement on the 25th October, 1995 that Esat Digifone had won the comparative evaluation to select the operator for such licence and the subsequent award of the licence to that company on the 16th May, 1996. That controversy, amongst others, lead to the establishment of the Moriarty Tribunal by act of an Taoiseach dated the 26th September, 1997, on which date, its general remit was to inquire into payment of monies to two individuals, one of whom was Mr. Michael Lowry, T.D.. In 2001 it particularised its purpose in this regard, describing its work as being, to determine whether the decisions above arrived at and the processes leading thereto were improperly influenced or impacted upon by the said Mr. Michael Lowry, T.D., the then Minister for Public Enterprise (now titled the Minister for Enterprise, Trade and Commerce). That Tribunal eventually reported in September, 2011 and arrived at conclusions which can only be described as breathtaking in their unequivocal condemnation of the conduct inter alia of the then Minister in the undertaking herein described.

    2. The GSM, or Global Standard for Mobile Communications, is a pan-European cellular digital land based mobile communication system, which is further described in the annex to Council Recommendation 87/371/EEC of the 25th June, 1987. It was introduced in European countries to accommodate technological developments of the 1990s. GSM enabled connection across national borders between mobile phone users.

    3. As can be imagined there was very considerable interest in the awarding of such licence, both from the public point of view and within the business and telecommunications sectors, it being the perceived wisdom that, the acquisition of such a priceless asset would afford the successful party an opportunity of commercial exploitation on truly an enormous scale. Such in fact came to pass in a short period of time with the sale of the successful company for well in excess of two billion euro. Hence the existence of intense public and media scrutiny in the contractual and competition setting, established by the State within which the process, leading to such decisions, was conducted.

    4. That process was intended to be fair, impartial, and independent: it was designed to be free of political influence and to be conducted in strict confidentiality by a project group, composed of civil servants augmented by outside experts. Guidelines were drawn up, rules and evaluation criteria were approved by the government. Contact with interested parties was to be scrupulously controlled. If adhered to, all of these steps, and others, should have lead to a declaration of success which in accordance with best international standards, would have been immune even from controversy or questioning, let alone from a Tribunal of Inquiry or from judicial challenge.

    5. The Moriarty Tribunal found that Mr. Michael Lowry, T.D. (or “the Minister”), exerted “insidious and pervasive influence” on the evaluative process thereby undermining its integrity and independence. Improper payments and other benefits were found to have been furnished by or on behalf of Mr. Denis O’Brien (see paragraphs 6 & 9 infra) to Mr. Michael Lowry, T.D. in relation to the conduct of the latter in securing the award of the GSM licence to Esat Digifone. Such conduct included: inappropriate interaction with Esat Digifone and Mr. O’Brien, specifically during sensitive stages; acquiring inside information which in turn he disclosed to Mr. O’Brien; making known his preference for awarding the licence to Esat Digifone, conveying his views on how to address Esat Digifone’s financial weakness by considering them curable by the granting of the licence; thereby rendering financial capability ultimately immaterial, contrary to Government policy; curtailing the work of the Project Group with decision-making power, by instead, centring such on a small subset of the group segregated from the expert consultants; and circumventing meaningful consideration by his Cabinet colleagues. This, it was found, resulted in the implementation of a process plagued with inadequacies and deficiencies, and in the creation instead of a distorted, renegade version of the originally planned evaluation process.

    6. As above stated, the Minister issued an announcement on the 2nd March, 1995 of a bidding process for the selection and licensing of a second entrant to the GSM mobile phone market in Ireland. A number of consortia participated in the process by competing for the tender. Of these the following are relevant to the instant appeals:

    7. The deadline for receipt of applications was originally set for the 23rd June, 1995, but on the 16th June, 1995, the Minister decided to extend such date to the 4th August, 1995. It is this decision to defer the closing date which was the subject of the First proceedings brought by Comcast (Record No. 2001/9288P). Comcast submitted their tender application on time, as did Persona, which incidentally says that in addition to the cost of the tender documents, they expended over six million euro in the preparation of their tender.

    8. As noted, the result of the competition was announced on the 25th October, 1995, with Esat Digifone being nominated as the preferred bidder with whom the State would enter into exclusive negotiations with a view to concluding the overall process. On the 16th May, 1996 the second GSM licence was officially awarded to Esat Digifone. It is the awarding of this licence, which founded Comcast’s Second proceedings (Record No. 2001/15119P) and the proceedings brought by Persona (Record No. 2001/9223P).

    9. In 2001, both Comcast and Persona initiated their respective proceedings against the Minister for Public Enterprise, Ireland and the Attorney General (the “State defendants”), by the issue of Plenary Summonses. It should be noted that in addition to the State defendants, Comcast, in both sets of proceedings, also joined Mr. Michael Lowry, T.D., Esat Telecommunications Ltd. which acted as a holding company for Esat Telecom Holdings Ltd., and Mr. Denis O’Brien. No similar step was taken by Persona.

    10. The Plenary Summonses were served in the Comcast and Persona proceedings shortly prior to the expiry of the period within which they remain in force, without having to be renewed. Appearances were duly entered and a Statement of Claim was served by Comcast in both actions on the 3rd June, 2005 and by Persona on the 21st April, 2006. On the 26th May, 2006 the State defendants issued motions seeking to have the Comcast proceedings dismissed. A similar motion to the same effect issued in the case of Persona. On the 13th June, 2007 Gilligan J., after careful consideration, delivered a composite judgment, striking out the issued proceedings on the grounds of want of prosecution and in the interests of justice. Both Comcast and Persona have appealed that judgment and the resulting Order. On the 17th July, 2012 this Court allowed those appeals. This is the reasoning for my decision to that effect.

    11. In order to explain the relevant sequence it may be helpful to plot a timeline of the most pertinent dates and events, constituting the background to these appeals.

    12. Matters Common to All proceedings:
    2nd March, 1995 Minister announces bidding process for second GSM mobile phone licence;

    16th June, 1995 Minister extends deadline for receipt of tenders to the 4th August, 1995;

    25th October, 1995 Minister announces that Esat Digifone has won the comparative evaluation process;

    16th May, 1996 Awarding of GSM licence to Esat Digifone;

    26th September, 1997 Establishment of Moriarty Tribunal.

    13. Comcast proceedings (2001/9288P; 2001/15119P):
    15th June, 2001 Plenary Summons issues: First Comcast proceedings (Record No. 2001/9288P);

    10th October, 2001 Plenary Summons issues: Second Comcast proceedings (Record No. 2001/15119P);

    14th June, 2002 Service of Summons in First Comcast proceedings;

    20th June, 2002 State defendants enter an Appearance (Record No. 2001/9288P) and seek the delivery of a Statement of Claim;

    10th July, 2002 Esat Telecommunications Ltd. enters an Appearance and seeks delivery of the Statement of Claim;

    4th October, 2002 Service of Summons in Second Comcast proceedings;

    24th October, 2002 Mr. Michael Lowry, T.D., the second named defendant enters an Appearance and seeks delivery of the Statement of Claim;

    25th October, 2002 Mr. Denis O’Brien, the fourth named defendant enters an Appearance and seeks delivery of the Statement of Claim;

    3rd December, 2002 Moriarty Tribunal commences public hearings into the award of the second GSM licence. Between December, 2002 and July, 2003, it hears evidence from Departmental Officials;

    16th December, 2002 State defendants enter an Appearance (Record No. 2001/15119P) and seek delivery of a Statement of Claim;

    8th October, 2004 Comcast issue Notice of Intention to Proceed;

    20th December, 2004 Mr. O’Brien issues a Motion, returnable before the Master seeking to strike out the Comcast proceedings for want of prosecution;

    5th April, 2005 Master of the High Court refuses to strike out such proceedings;

    14th April, 2005 Mr. O’Brien appeals such Order;

    9th May, 2005 Kelly J. makes an Order whereby Comcast’s proceedings are struck out unless a Statement of Claims is delivered within 28 days;

    3rd June, 2005 Comcast delivers a Statement of Claim in both sets of proceedings within the permitted 28 days: the same is duly served on all defendants;

    14th May, 2006 Mr. O’Brien serves a Defence and a Counterclaim in each proceeding;

    26th May, 2006 State defendants issue Notice of Motion seeking to have both sets of proceedings dismissed.

    14. Persona proceedings (2001/9223P):
    15th June, 2001 Plenary Summons issues (Record No. 2001/9223P);

    10th June, 2002 Service of Summons;

    20th June, 2002 State defendants enter an Appearance, and seek delivery of a Statement of Claim;

    3rd December, 2002 Moriarty Tribunal commences public hearings; between December, 2002 and July, 2003, it hears evidence from Departmental Officials;

    22nd March, 2006 Persona changes solicitors;

    23rd March, 2006 Service of Notice of Change of Solicitor by registered post;

    31st March, 2006 The Chief State Solicitor writes to Persona’s Solicitors calling for the delivery of a Statement of Claim, consenting to its late filing up to and including 21 days from the date thereof, and threatening to proceed with a Motion to strike out the proceedings for want of prosecution should Persona miss the deadline;

    5th April, 2006 Persona requests an extension of this period for two weeks;

    11th April, 2006 Reminder letter issues to the Chief State Solicitor’s office;

    21st April, 2006 A second reminder letter issues regarding such extension;

    21st April, 2006 Persona delivers the Statement of Claim within the period of time consented to;

    26th May, 2006 State defendants issue Notice of Motion seeking to have the Persona proceedings dismissed.

    15. The three Motions issued by the State defendants are identical in all cases and relying on the inherent jurisdiction of the Court seek, inter alia an order dismissing the actions (i) for delay and want of prosecution, and (ii) in the interests of justice; such further ancillary orders as were appropriate are also sought. The applications were grounded upon the Affidavit of one Mr. Matthew Shaw, a solicitor in the Chief State Solicitor’s Office who is dealing with the matter and who was also heavily involved in the Moriarty Tribunal. In essence he alleged that:

        (i) there has been inordinate and inexcusable delay in both the commencement and prosecution of such actions, “resulting in prejudice”, to the State defendants, such that “the balance of justice” requires a dismissal of all cases;

        (ii) the periods of delay – between five and six years from the dates of the alleged wrongdoing to the service of the Plenary Summonses and between nine and ten years to the service of the Statements of Claim – are in themselves such, that would justify the relief sought;

        (iii) the right of the State defendants to fair procedures and to have a fair trial would likewise justify the same conclusion; and finally

        (iv) the delays complained of infringe the rights of the State defendants under Article 6 of the European Convention on Human Rights.

    16. In response, Comcast, through the replying Affidavit of Mr. Damien Young, solicitor stated that:
        (i) the delay is excusable as the issues in controversy were complex and also were the subject matter of continued investigation by the Moriarty Tribunal: it was therefore reasonable for Comcast to await the outcome of the Tribunal prior to delivery of a particularised Statement of Claim;

        (ii) even if the delay is found to be inexcusable, the balance of justice requires that the proceedings should not be dismissed as the State defendants have not suffered any particular prejudice as a result of the delay;

        (iii) if however the claim is struck out the plaintiffs will suffer obvious prejudice.

    17. On behalf of Persona, Mr. William Jolley, solicitor from the firm Bowler Geraghty & Co. Solicitors swore the replying Affidavit and averred that the delay complained of is excusable as:
        (i) any delay in issuing the proceedings resulted from the constant reassurances from the State defendants as to the integrity of the tendering process;

        (ii) in June, 2002 the plaintiffs, in a single request sought and were refused access, firstly under the Freedom of Information Acts, 1997 - 2009, and secondly on a voluntary basis, to all records regarding the tendering competition;

        (iii) the State defendants were aware of Persona’s intention to prosecute the proceedings due to the constant attendance of their legal representatives at the Moriarty Tribunal;

        (iv) not long after the service of the proceedings, whilst both were in attendance at the Tribunal, the former solicitor for Persona, Mr. Gerard Moloney told Mr. Shaw, in what was described as a “casual” conversation, that a Statement of Claim would not be delivered for the foreseeable future. In response, Mr. Shaw did not object and apparently seemed relieved;

        (v) the State defendants never complained about delay, not even on receipt of the Notice of Change of Solicitor in March, 2006. In fact, they issued a letter on the 31st March, 2006 seeking a Statement of Claim within 21 days from that date, it being claimed that the motive for the issue of such letter was to “catch the plaintiffs on the hop”;

        (vi) the Statement of Claim was delivered within the permitted time;

        (vii) due to the seriousness of the allegations and complexity of the issues, the Tribunal was of assistance in circumstances where the State defendants refused to furnish information to the plaintiffs; and

        (viii) had the plaintiffs sought to prosecute the proceedings during the currency of the Tribunal, the State defendants would have objected, claiming inability to deal with both concurrently.

    18. In their Statement of Claim, dated the 3rd June, 2005 (2001/15119P), Comcast alleged that wrongfully and in breach of contract, in breach of duty and in breach of statutory duty, the Minister and/or his servants or agents:
        (a) compromised the integrity of the tender process by communicating with bidders in contravention of the established guidelines;

        (b) disclosed or caused to be disclosed confidential information to Esat Digifone in relation to the bid process;

        (c) altered the terms of and unlawfully interfered with the tender process in order to favour Esat Digifone; and

        (d) accepted improper payments made by Mr. Denis O’Brien and/or Esat Telecommunications Ltd. for the purpose of influencing the outcome of the tender process and/or rewarding the Minister for having interfered to ensure that the licence was awarded to Esat Digifone.

    19. Particulars under each heading are then given but the entire Statement of Claim is premised by the assertion that the plaintiffs are unable to fully particularise the extent of the wrongdoing until the investigations being conducted by the Moriarty Tribunal are concluded. The Statement of Claim in the first Comcast proceedings has a similar basis although it is referenced to the Minister’s announcement in October, 1995. Damages are sought for the breaches above stated as well as for misfeasance in public office, fraud, deceit, and breach of the Prevention of Corruption Act, 1906, as amended.

    20. In addition, Comcast alleged that both Mr. O’Brien and Esat Telecommunications Ltd. similarly owed a duty to refrain, from engaging in wrongful acts calculated to interfere with the integrity of the tender process, thereby ensuring award of the licence to Esat Digifone in breach of the governing rules. Comcast further claimed that both Mr. O’Brien and Esat Telecommunications Ltd. breached their duty by one or both of them causing payments to be made to the Minister, in breach of the tender process rules and in contravention of the Prevention of Corruption Act, 1906, as amended and that these payments were made in order to secure the award of the licence to Esat Digifone and/or to reward the Minister for his intervention. Comcast reserved the right to deliver further particulars at any time before trial. Finally, Comcast alleged that it suffered loss and damage as a result.

    21. Mr. O’Brien, the fourth named defendant, served a Defence in which he simply denied the allegations: he also filed a Counterclaim in which he alleged that:

        (i) the proceedings are maliciously motivated and issued out of spite, resulting from a failure to secure the GSM licence;

        (ii) the proceedings were instituted maliciously without any supporting evidence and in the hope that findings of the Tribunal would substantiate the claims made;

        (iii) the proceedings were instituted without reasonable and probable cause as the plaintiffs do not have knowledge of any alleged wrongdoing or unlawful actions on the part of Mr. O’Brien; and

        (iv) as a result, he, Mr. O’Brien, has suffered injury to his reputation and complains of moral stigma due to the institution of these adversarial proceedings, and has suffered loss and damage.

    He also caused to be issued a Notice for Particulars.

    22. Persona made similar allegations against the Minister and other defendants in their Statement of Claim. In particular they pleaded: breach of contract; breach of duty, including breach of statutory duty; misfeasance in public office; breach of legitimate expectations; breach of constitutional rights, in particular Articles 40.3 and 43 of the Constitution; deceit and misrepresentation, including fraudulent misrepresentation. They further claim that the Minister conspired with Esat Digifone to secure for them the award of the licence, thereby wrongly penetrating the competition, and/or ignored/disregarded the competition process, and/or used the process for the purpose of concealment; that these acts were unlawful and intended predominantly to cause injury or damage to Comcast, or if not unlawful per se were rendered such by this predominant purpose. Moreover they assert that the Minister dishonestly furnished assistance to Esat Digifone and breached the plaintiffs’ rights under EU law. They seek damages in respect of these matters.

    23. The State defendants did not at any stage in either the Comcast or the Persona proceedings, serve a Defence or raise Particulars or otherwise respond to the allegations as pleaded, save for issuing the Motions, the subject matter of this judgment.

    The Relevant Legal Prinicples:
    24. As noted above the basis of the relief being sought is stated in the alternative, firstly, on the delay being inordinate and inexcusable, and secondly, by reason of such delay justice requires the dismissal of the proceedings. The Motions may thus be classified as seeking, a dismissal for want of prosecution and in the interests of justice. Apart from these two strands I know of no other approach in the present context. The jurisdiction invoked is said to be inherent to the court: no mention is made in the Motions of the Rules of the Superior Courts (the “Rules”), in particular neither O 27 R 1 nor O 122 R 11 are mentioned. Even if they had I consider the underlying jurisdiction to be the same.

    25. For many years the court’s discretion in this jurisdiction to dismiss an action for want of prosecution has been consistently governed by the principles articulated by Finlay P. (in 1979) in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 (“Rainsford”), as further developed, or consolidated by the Supreme Court in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459 (“Primor”), where Hamilton C.J., deriving from the relevant authorities, summarised comprehensively the principles to be applied. As such are very well known, the passage from the judgment, so often referred to, which appears at page 475 and 476 of the report does not require citation. It is sufficient to say that if inordinate delay is established, which is incapable of justification, the “balance of justice” must also favour the moving party before an action is terminated without an adjudication on the merits. I shall refer to what was established by Rainsford/Primor as the “Primor” principles.

    26. At paragraph (d) of the passage referred to, the learned Chief Justice outlines a non-exhaustive list of factors, which fall to be considered under the third limb of the criteria. These are:

        (d)(iii) “any delay on the part of the defendant - because litigation is a two party operation, the conduct of both parties should be looked at”;

        (d)(iv) whether any “such delay or conduct” on the part of the defendant “amounts to acquiescence”, in respect of the plaintiff's delay; and

        (d)(vi) whether the plaintiff’s delay has caused substantial prejudice to the defendant or has seriously impaired the likelihood of a fair trial.

    These are matters which I will refer to again later in the judgment.

    27. The factors listed are evidently non-exhaustive: some may have no relevance to a given case which may have to be determined by other matters. All will depend on specific circumstances. However, what must be emphasised is that, at the level of principle, the position of both parties must be appraised and evaluated. All relevant material must be looked at, with no single or individual matter being conclusive save that as mandated by the particular case. As Fennelly J. said in Anglo Irish Beef Processors Ltd. v. Montgomery [2002] 3 IR 510, the relevant considerations should be viewed “as related matters affecting the central decision as to what is just”. That is the sole objective and exclusive goal to be achieved: when delay, with the above characteristics is in play, the court, on these principles is concerned only with achieving a just result. What does justice, between the particular parties and in the particular circumstances, demand? Such is the end line of this type of analysis.

    28. There is one aspect of this jurisprudence which has attracted some varying judicial comment in the recent past and which is again referred to by Clarke J. in his judgment in the instant case. It relates to the importance which should be assigned, to differing factors in each of the three limbs of the test under discussion. Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 (“Gilroy”), having referred to a recent amendment to O 27 R 1 (S.I. 63/2004) of the Rules, to increased judicial awareness regarding delay, to the enactment of the European Convention on Human Rights Act 2003 and to judgments of the European Court of Human Rights, such as McMullen v. Ireland (42297/98) July 29, 2004, suggested that delays previously overlooked may not in future be viewed upon so benignly. The “dilatory” were put on alert as to the consequences of their “dilatoriness”. Clarke J. took up the same theme in a number of cases including Stephens v. Paul Flynn Limited [2005] IEHC 148, Rogers v. Michelin Tyre Plc, Michelin Pensions Trust (No 2) Limited [2005] IEHC 294 (“Rogers”), and Kategrove Ltd. (In Receivership Hugo Merry and Peter Schofield) v. Anglo Irish Bank Corporation Plc. and Anor. [2006] IEHC 210, and was of the view that, with regard to relevant factors, some significant weight re-adjustment was necessary so as to ensure a “stricter approach to compliance”. The learned judge went on to say that Article 6 of the European Convention on Human Rights (the “Convention”) may demand such an approach which may impact upon the balance of justice by “imposing greater obligations of expedition and against requiring the same level of prejudice as heretofore”.

    29. In a judgment which post dated that of the trial judge in the instant cases, Geoghegan J., in Desmond v. M.G.N. Limited [2009] 1 IR 737 (“Desmond”), being one of the two judges constituting the majority decision, specifically refers to Gilroy. Having described the views of Hardiman J. as being obiter, the learned judge reaffirmed his belief in the Primor principles and felt that even against the backdrop of any case law from the European Court of Human Rights, no justification existed for a reconsideration as to how such principles should be applied. Macken J. was satisfied that notwithstanding the Convention and any case law there under, the Primor principles remain appropriate. Incidentally, I am unaware of any jurisprudence from that Court which demands the dismissal of an action on delay grounds. In McBrearty and Others v. the North Western Health Board and Others [2010] IESC 27 (“McBrearty”), the most recent case of direct relevance on this issue, Geoghegan J., with whom the other members of the Court agreed, once more referred to this matter and reiterated that the Primor principles “had stood the test of time”. Whilst pointing out that vigilance must be exercised, particularly if “culpable delay” had been established, he held nonetheless that there was “no justification for any major departure from these established and well-tried principles”.

    30. I have looked closely at this issue in the instant case, only because the absence of comment may otherwise be taken, as representing a view which I do not hold. My views coincide with those referred to in the previous paragraph. I therefore see no reason, at least at this stage, for any formal reassessment of how Primor should be applied. No-one, so far as I am aware, has suggested that the three limb approach established in such cases should be substantially altered or that any matter or factor heretofore relevant, should be omitted from future consideration. In fact it should immediately be said that Clarke J. in Rogers acknowledged that his suggested shift of emphasis did not envisage any change in the matters to be considered but rather involved an adjustment within the existing practice. Even so, in my view, when both inordinate and inexcusable delay is being considered and when the balance of justice is being looked at, the court always has a discretion in its evaluation of the presenting circumstances, from which the ultimate decision is made. That discretion is, and in my opinion should remain, sufficiently flexible to deal with any situation or event: in its application to date I know of no case where it could be legitimately argued or suggested that the result arrived at was the wrong one or was an unjust one.

    31. My concern with any such formal adjustment, or “recalibration” as it has been described, can be illustrated by reference to the facts in Guerin v. Guerin [1992] 2 I. R. 287 (“Guerin”). It will be recalled that the plaintiff in that case met with a road traffic accident in 1964 when aged 4, but that the proceedings were not issued until 1984, more than 20 years later. Whilst the Statute of Limitations did not arise for consideration and whilst O’Domhnaill v. Merrick [1985] I.L.R.M. 40 (“O’Domhnaill”) and Toal v. Duignan (No. 1) [1991] I.L.R.M. 135 (“Toal (No. 1)”) and Toal v. Duignan (No. 2) [1991] I.L.R.M. 140 (“Toal (No. 2)”) are referred to in the judgment, the learned judge decided the issue by reference to Primor. In a powerful understanding of the disadvantaged and with a deep insight of the deprivation under which they labour, Costello J. excused the delay by reference to the plaintiff and his family’s destituteness in virtually every aspect of their existence, including their living, financial, and educational circumstances. As stated by him they survived in a “world from which the world so familiar to lawyers in which people sue and are sued was remote and arcane”. Given their particular circumstances it was held that the delay, although undoubtedly inordinate, was in the judge’s view excusable. Any contrary result in Guerin I believe would have been unjust, but nonetheless may have been possible if weight reassessment was in place.

    32. In addition I ask whether such an alteration as a matter of principle could, at least to some extent, disregard from consideration or affect the appraisal of, circumstances such as those outlined by Fennelly J., at page 518 of Anglo where he said “[t]here may, of course, be cases where the unpredictable hazards of life afflict the course of litigation. Individuals may be handicapped by poverty, illness, ignorance or absence from the jurisdiction. Documents may be mislaid, lost or destroyed. Poor or inadequate legal advice or service may, through no fault of the litigant, impede the progress of a claim.” The learned judge offered such circumstances as examples of what may be excusatory. One wonders at the extent to which such matters would be undermined in the alternative situation? Could such be still accommodated in a just and fair way? Maybe, but in the absence of compelling reason I see no necessity to test that proposition. Therefore, whilst I entirely agree that delays should be avoided wherever possible, and that such delays may be scrutinised with more vigour and less understanding than previously, nonetheless, there is sufficient capacity within the existing principles and their application to underpin this level of vigilance, but not such that unduly influences an outcome at the potential cost of justice. Consequently, whilst not foreclosing on the possibility that events may arise which would require a reconsideration of this current approach, nonetheless, I do not believe that such has, at this stage, arisen.

    33. In expressing this opinion may I immediately disown any interpretation which suggests that the old days of “endless indulgence” have returned. I hold no such views. It is not what I convey or intend to convey. My point is utterly simple. In the situation under discussion justice is best achieved by letting it react to given facts. The same period of delay, in different cases, may demand different treatment. Justice is not always referenced to the highest bar. If that were the case the wealthy, powerful, and the influential would set it. That should not be allowed. Justice sets its own bar. A failure of the average man and his average lawyer to match the gold standard of their opposite in society and in practice must not be necessarily condemned.

    34. In the same general context there is another matter which I would like to touch on. It relates to the “inactivity” on the part of a defendant, in circumstances in which he subsequently complains of inordinate and inexcusable delay on the part of the plaintiff. In a number of cases, a distinction has been made between what has been described variously as “active delay” or “culpable delay” as distinct from “inactive delay” or “mere delay”. The former in general refers to an undischarged obligation on the defendant’s part whereas the latter is intended to reflect the passage of time simpliciter or the “do nothing” approach. Again, I remain unconvinced that such a formal departmentalising of the defendant’s conduct is justified. In Dowd v. Kerry County Council [1970] I.R. 27 O’Dálaigh C.J., with whom Walsh and Budd JJ. agreed, said the following by way of a general observation:

        “First, in weighing the extent of one party’s delay, the Court should not leave out of account the inactivity of the other party. The rules of court provide for actions being struck out for want of prosecution. There is the provision of Order 27, r. 1, and the provision of Order 108, r. 11, where there has been no proceeding for two years. The adage about sleeping dogs may be wise, but it is not specifically conceived to advance the cause of justice. In some instances it is acted upon by a defendant in the hope that he will “get by” without having to face the peril of being decreed. Litigation is a two-party operation, and the conduct of both parties should be looked at” [emphasis added].
    35. The passage from the judgment of Finlay P. in Rainsford, where he said that “[d]elay on the part of a defendant seeking a dismiss of the action, and to some extent a failure on his part to exercise his right to apply at any given time for the dismiss of an action for want of prosecution, may be an ingredient in the exercise by the court of its discretion” [emphasis added], is, on occasion, relied upon as justifying the distinction above referred to, with the consequence that depending on how this activity can be categorised, different weight considerations apply. It is not at all clear to me that the learned President, as he then was, intended such a distinction. Certainly I do not believe that Primor supports such a view, but I readily accept that to varying degrees other judges have.

    36. Whilst there can be no doubt but that the moving party has the greater obligation of expedition overall, nonetheless the defendant’s interaction or lack of it, as the case may be, with the delay of which he later complains, whether active or purely inactive, to use such phrase, may rightfully attract condemnation by virtue of many other circumstances such as: the identity and character of the particular defendant; the position which he holds; whether that be public or private; the standing and accountability of that position, whether it be representative of the public, of an institution which it serves or otherwise; and the nature of the issues which he is called upon to answer. Given the gravity of the charges levelled against the State defendants in this case, I am astonished that they have not sought, with all due alacrity, an immediate opportunity to answer such charges and to vindicate their repeated assertion as to the integrity of such a hugely significant public process. Whilst I readily accept that what in truth is the plaintiffs’ delay should not rest on the defendant’s table, nonetheless it must be remembered that the constitutional guarantee of fair procedures and the right to a fair trial – both of which are invariably relied upon in motions to dismiss for either want of prosecution or in the interests of justice – are at the disposal of a defendant in a host of varying circumstances, and relatively speaking from a very early stage of the proceedings. See O 27 R 1, dealing with a failure to deliver a Statement of Claim, O 36 R 12, regarding the absence of a Notice of Trial, and O 122 R 11, permitting a dismiss application for want of prosecution, of the Rules. Those rules, coupled with many statutory provisions, as well as judicial precedent, are all designed to further, in an administrative, practical and operational sense, the defendant’s rights, every bit as much as the plaintiff’s rights. Murphy J. declares so in Hogan and Others v. Jones and Others [1994] 1 I.L.R.M. 512 (“Hogan”), where at page 520 the learned judge states:

        “insofar as the defendants assert a constitutional right to have the litigation conducted in accordance with fair procedures, it seems to me that they and all litigants must view the Rules of the Superior Courts and the relevant legislation (including in particular the statute of limitations) as part of the structure designed to give effect to the constitutional right. The constitutional right to fair procedures is protected not only by the power of the court to dismiss a case for want of prosecution but also by the other interlocutory steps or procedures which protect either party from undue delay by the other”.
    I respectfully agree with what the learned trial judge has stated.

    37. Hogan is also of interest by reason of the manner in which the judge dealt with the delay alleged against the particular defendant, which had two aspects to it. The first was its failure to deliver a defence, which is not of interest, but the second, which was its failure to move against the plaintiff, which itself was in serious default, is. In that context reference was made to Calvert v. Stollznow [1980] 2 N.S.W.L.R. 749, where the issue as to how far a defendant should go to compel a plaintiff “to progress the outstanding litigation” is discussed. Cross J., in his unreported judgment but which was affirmed on appeal as stated, disagrees with the suggestion found in some English cases, that a defendant is entitled to “let sleeping dogs lie” in the hope that the action will expire. If he chooses this route and if his tactical gamble, for that is precisely what it is, should not come to pass, then surely he should not be allowed to subsequently rely on that delay to advantage himself? To so permit seems unattractive and unfair. This description is mine but the views of Cross J. are to the same effect. In any event, whilst describing the relevant passage as “apposite”, Murphy J. did not find it necessary to further comment on this apparent difference, stating that “the topic is amply covered in this country by a series of decisions of the Supreme Court reaching from Dowd v. Kerry County Council [1970] IR 27 to … Celtic Ceramics Ltd v. IDA affirming the decision of O'Hanlon J reported in [1993] ILRM 248”. I cannot see any formal system of classification or rating of the defendants’ conduct in such cases.

    38. Consequently, I remain of the view that differentiation at a formal level of the defendant’s activity, with the consequences that have been suggested, is one which I doubt is either desirable or necessary.

    39. However, if some form of recalibration is generally favoured then I have no doubt but that mutuality of adjustment must apply and that a greater sense of awareness must also attach to the defendant’s position, in whatever way that may have come about. Otherwise to say that justice is a two way process is entirely hollow.

    40. As the motions which issued in these proceedings disclose, the dismissal relief is sought not only for failing to prosecute but also on the basis of the interests of justice. That the courts have such an inherent jurisdiction cannot be doubted. It surfaced in O’Domhnaill, was further established in Toal (No. 1) and Toal (No. 2), and since then, in several cases, has been accepted without question. It has a somewhat distinct basis and separate existence from Primor, but many of the matters relevant for its application are common to both. The test to be applied has been described variously such as, by reason of lapse of time or delay:

        (i) is there a real and serious risk of an unfair trial, and/or of an unjust result;

        (ii) is there a clear and patent injustice in asking the defendant to defend; or

        (iii) does it place an inexcusable and unfair burden on such defendant to so defend?

    The justification for the existence of this jurisdiction was described by Finlay C.J. in Toal (No. 2), a case in which the plaintiff was blameless for the delay involved and where the proceedings were issued within the permitted statutory period, as stemming from the supremacy of the court’s constitutional obligation which transcends any legislative provision to achieve justice inter partes. No specific article of the Constitution was quoted in this regard, but the administration of justice and the personal rights provisions, must have been intended.

    41. Some of the factors to be considered by the court on this type of application were identified in Manning v. Benson and Hedges Ltd. [2005] 1 ILRM 190 by Finlay Geoghegan J. at page 196 of the report. I would respectfully agree with the learned judge and add only, as she intended, that such were merely indicative of what might overall be relevant for appraisal in any given case.

    42. There are a number of features to this jurisdiction which are worthy of note: firstly that it applies even if the proceedings are instituted within the statutory period prescribed for by the Oireachtas; secondly, that a defendant can succeed in avoiding a merit hearing even where a plaintiff is entirely blameless for the delay, in either in a personal or a vicarious sense; and thirdly, that the time period looked at, commences from the date of the alleged wrongful acts and continues to the anticipated date of trial. In addition however, it also has the distinct feature of its focus being on the defendant: as appears from the descriptive nature of the test as given, the criterion essentially is defendant directed. This is in stark contrast to the Primor principles where the positions of both are equally considered. It is therefore clear that this is a wider jurisdiction than Primor with a lower threshold to surmount before its successful invocation. That distinction, coupled with the others as identified, makes this jurisdiction one which should be sparsely used and little availed of. I fully agree with the words of Hogan J. in Donnellan v. Westport Textiles Limited (In Voluntary Liquidation) and the Minister for Defence, Ireland, and the Attorney General [2011] IEHC 11 where in this context, the learned judge, having stated that such jurisdiction permits the court in an appropriate case to “strike out proceedings, even though the third limb of the Primor test might not have been established”, went on to caution that, “[o]f course, such cases would have to be exceptional”.

    43. From my experience it seems that ever since this jurisdiction has became well established, it has routinely been included as an alternative relief by defendants in seeking to have actions dismissed for want of prosecution. I decry such a move. Given the capacity of Primor to deliver a just result, I cannot see any justification for its use as a matter of course. While I entirely acknowledge the importance of this jurisdiction and access to it, nonetheless its recourse in my view should be had only in the most exceptional circumstances.

    44. From a consideration of the Pleadings in these cases, such as they are, of the Affidavits sworn to ground and oppose the applications, and in particular noting the relevant time period and events outlined in paragraphs 12-14 infra, exceptionality, of the scope demanded, cannot in my view be said to exist and accordingly there are no grounds upon which this type of jurisdiction can succeed in this case.

    Persona:
    45. In his judgment Hardiman J. stresses the uniqueness of the proceedings at issue. Save in one respect I entirely agree. In that respect however, Persona’s case is utterly mundane. Having been called upon to deliver a Statement of Claim, Persona had 21 days to do so under O 20 R 3 of the Rules. Their failure in this regard meant that they forfeited, what otherwise was an unconditional right to do so, the consequences being:

        (i) that before they could take that necessary step they required permission, which could be obtained in either one of two ways: a letter of consent from the relevant defendants, or a court order; and

        (ii) an exposure to a Motion to Dismiss for want of prosecution.

    Under O 27 R 1 of the Rules where a plaintiff fails to deliver a Statement of Claim within the period allowed, the defendant may, at the expiration of the period, apply to the court to dismiss the action for want of prosecution. However as this step may be taken at the moment the deadline passes and as this may give rise to unmeritorious Motions which add to litigation costs, the rule also provides that the defendant, when threatening to issue such a motion must furnish a 21 day consent letter to the late delivery of the Statement of Claim. If complied with, the matter is at an end. If not complied with the Statement of Claim can still be delivered up to seven days after the service of the dismiss motion; if it is the motion shall then stand struck out with measured costs being payable to the defendant: O 27 R 1A(3) of the Rules. If not, the motion proceeds in the normal way.

    46. This procedure, although available at any time after the 21 day period referred to, was not in fact availed of by the State defendants in this case. As no proceedings had taken place for a period of two years prior, the dismiss motion when issued did not require adherence to such procedure by virtue of O 122 R 11 of the Rules. No letter of extension as mentioned was therefore mandatory. So against this background, let us again recall what actually happened. As stated above, upon their change of solicitor Persona served, as required, a Notice of Change of Solicitor on the 23rd March, 2006: they did so by way of registered post. As of this date, the Persona proceedings, apart from Appearances, had stood dormant since the issue of the Summons, almost 5 years previously. Notably, neither in the Notice of Change, nor in the accompanying letter was there any indication by Persona as to how they intended to progress the proceedings, in particular what their intentions were regarding the delivery of the Statement of Claim. No letter of consent was sought in this regard and neither was a Notice of Intention to Proceed served. The reasons become clear by reference to the correspondence which followed from Persona’s Solicitors. Nonetheless, the Chief State Solicitor responded on the 31st March, 2012 to the Notice of Change by stating:

        “Dear Sirs,

        I refer to the above entitled proceedings and note that you have not filed a Statement of Claim on behalf of your clients. Please note that if you do not file a Statement of Claim within 21 days from the date hereof, I am instructed to proceed with a notice of motion, seeking to strike out these proceedings for want of prosecution, without further notice to you.

        You might further note that on behalf of the first, second and third defendants, I hereby consent to the late filing of the Statement of Claim by you up to and including 21 days from the date hereof.”

    47. Mr. Jolley, Persona’s solicitor, replied on the 5th April, by thanking him for the extension but, in light of his firm’s recent retainer and the necessity to absorb, appraise and evaluate the numerous documents involved and more particularly the seriousness of the issues emerging, as well as the incidental matter of the up-coming Easter holidays, requested a further extension of two weeks. Despite further articulating such matters and notwithstanding two further reminder letters on the 11th and 21st April, 2006, as well as several phone calls, the Chief State Solicitor saw fit not to respond or even acknowledge such correspondence. Nonetheless, Persona in fact delivered a Statement of Claim within the stipulated 21 day period. About a month later the State defendants issued the Notices of Motion under review on this appeal.

    48. By asking what the State defendants intended to convey by such letter, I don’t mean to enquire into their motives for its issue, although I would be most curious to know. Mr. Jolley has speculated in this regard: he avers on oath that the State wished to catch his clients “on the hop”. This issue from my point of view can remain unresolved as I intend to proceed on the basis of accepting the letter at face value.

    49. Before proceeding further I should note that in his judgment, Clarke J. leaves open the question as to whether the consent letter issued under O 27 R 1 rather than O 122 R 11 of the Rules. Having again looked at the evidence and having considered the background and the circumstances then prevailing, I think the former is most unlikely. Firstly, the letter makes no mention of any order or rule; secondly, I know of no reason why the State would opt for such an approach and thereby concede, what may be a significant litigious advantage to Persona, when freed of such advantage they could likewise have moved under O 122 R 11 for the same relief; thirdly, it is most likely that Mr. Shaw would have so explained in his grounding Affidavit if that had been the case, and finally, at least on one view, the allegation made by Mr. Jolley could reflect badly on the State, yet they never responded to this averment. Such an approach from my point of view would simply make no sense and therefore I think it is highly implausible. Consequently, I intend to proceed as I think the logic of the situation dictates.

    50. The seeking of an extension of time where default in pleading has arisen, (as is more usual) and the giving of such consent, is a routine and longstanding practice, underpinned by rules of court, which enormously facilitates the running of litigation. Without a time limit for the service of documents, disorder would prevail and the justifiable aim of expedition in, and finality of, litigation would be unattainable. However, experience of work in the real world must also be recognised: for a variety of reasons, some good, some bad, such time limits are regularly not adhered to. Provision is therefore made to accommodate the deserving and to deal with the undeserving in this regard. So the parties themselves, or the courts, under the Rules have the capacity to allow or disallow time as strategy, or justice requires. This is so much a part of ordinary litigation that it is not newsworthy.

    51. By such letter in this case the State defendants informed Persona that with their permission they could take the next step in the litigation, namely the service of Statement of Claim, within 21 days. The clear representation was that if they did so, the State defendants would accept same, and by inference would not seek to prevent that step by reliance on past events. This permission, or if one likes, concession, came with a stern warning that any failure to take the opportunity offered would result in the issue of a dismiss motion. It has never been suggested that the letter issued accidentally or by mistake or that its issue was anything other than a conscious and advised one.

    52. Having stood this representation on its head, and despite full compliance with their stipulated condition, the State defendants, nonetheless issued a motion seeking to have the action dismissed. At the hearing, their counsel suggested that the letter did not extend as far as to imply that upon compliance his clients would not issue a Motion to dismiss in the interest of justice. I reject this distinction as utterly spurious. The indication from the letter is clear: the only plausible interpretation is that as described herein. Such letters are utterly standard procedure and are crucial to the practical functioning of inter partes litigation and the court’s facilitating role in this regard. If it were permissible on every occasion of delay, to immediately issue a motion for want of prosecution the courts would become so suffocated that chaos would ensue. Moreover, if a defendant, such as the State defendants in this case, could immediately disown the consequences of their own action in furnishing consent, even when not requested and for which no intervening circumstances could possibly account, this would equally result in a deluge of unjustified applications to the court.

    53. The second method by which Persona could have delivered a Statement of Claim was to get the court’s permission to do so. Arguably from a “justice” point of view a voluntary letter given without request has greater standing than a contested court Order. Apart from such point altogether, if on the 31st March, 2006 Persona had obtained an Order, whether it be an “unless” one or otherwise, permitting the delivery of a Statement of Claim within 21 days, and had such been complied with, would the court allow the State defendants, within a matter of weeks thereafter, to issue a motion seeking to dismiss the proceedings by reason of delay? I have no doubt but that the court would refuse to do so and would simply not entertain such motion.

    54. The precise basis upon which this result would rest could be the subject matter of some discussion. Issues such as acquiescence, estoppel of some description, and unconscionable behaviour come to mind. There are certain difficulties in applying each of these concepts. In my view however, a more satisfactory basis for allowing this appeal is one based on abuse of process. Abuse of process is, as famously articulated by Lord Diplock in Hunter v. Chief Constable of West Midlands and another [1981] 3 All ER 727, at 729:

        “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-minded people.”
    See Smyth v. Tunney, Devine, and Crofter Properties Ltd. [2009] 3 IR 322, in particular para 21, where Finnegan J. in all material respects endorses this passage.

    55. Thus, where, having received the Statement of Claim from Persona within the period consented to, the Chief State Solicitor issued a Notice of Motion for dismissal for want of prosecution within a month, this must equally be considered, irrespective of any motive to catch the new solicitors for Persona “on the hop” or otherwise, to amount to an abuse of process. Such is an aspect of the right to have litigation fairly conducted, which in turn is deeply rooted in the courts jurisdiction regarding the administration of justice. I would therefore allow the appeal.

    56. Even if I am wrong in this regard I would arrive at the same conclusion for the reasons outlined later in this judgment, as I consider the admittedly inordinate delay to be excusable, largely on the same grounds as apply in the Comcast case.

    Comcast:
    57. The issues raised by Comcast in their proceedings are strikingly similar to those ventilated in the case of Persona. Consequently, if the State defendants have to face the Persona proceedings, as they must, it is impossible to identify any reason why they should not also have to face the Comcast proceedings. In addition, counsel on behalf of such defendants, conceded during the course of the appeal hearing that, if Comcast had sought a similar letter of consent, he could see no reason why that would not have been forthcoming. In fact, their Statement of Claim was delivered in June, 2005, almost one year before the issue of the motions under review. No response of any type was made to that move by the defendants. While tempting to decide the Comcast appeal solely on these grounds, it may be perceived as somewhat unsatisfactory to do so. Consequently, it remains to be considered whether, under the Primor test, the delay to which Comcast concedes as being inordinate, was excusable. The resulting assessment must, of necessity, depend on the particular circumstances of the case. However, apart from the consent letter it is agreed that the relevant circumstances in both cases are materially similar and may thus be so treated.

    58. Comcast and Persona seek to excuse the inordinate delay by asserting that the primary reasons therefor relate to the complexity of the issues, the covert circumstances from which they arise, and the repeated denials of all wrongdoing on the part of the State and those for whom it may be vicariously responsible. As these matters were then being investigated in the Moriarty Tribunal, it was therefore reasonable they say, to await developments before particularising their Statement of Claim.

    59. The nature and value of the underlying asset, namely the licence; the identity of its owners, namely the State; and the importance of the decision to dispose of it, presumably in the public interest; were all matters which demanded the highest level of integrity in the process established for this purpose. The reputation of prized institutions of the State, indeed the State itself and at a more general level, its people, were at stake. This was clearly recognised by the Houses of the Oireachtas and by an Taoiseach in the establishment of the Moriarty Tribunal to investigate, as a matter of public concern, the allegations of impropriety then suspected. Such allegations in most material respects were the same as those the subject matter of the instant proceedings.

    60. It cannot be denied but that the conduct alleged by the plaintiffs as amounting to, amongst other things, misfeasance in public office and contravention of the Prevention of Corruption Act, 1906, is, if found to be true, of the most grave and appalling kind which can be mounted against any public office. It is of necessity by its very nature cloaked with deceit and concealed with vigour. It was strenuously denied by the State defendants who repeatedly reasserted the integrity of the process and those involved in it. Was it therefore reasonable for the plaintiffs to defer movement of their actions whilst such an investigation was on-going? In my view they were so entitled.

    61. The plaintiffs realise that they cannot utilise or otherwise rely on the conclusions reached by the Tribunal, at any level of evidential value. Rather, they are fully aware that they must prove any allegation pleaded, by admissible evidence reaching a standard of probability commensurate with the seriousness of such assertions. Whether they will do so, how they might do so and what the outcome might be, are all matters upon which I make no comment. The trial court is where such issues will be determined. What they seek to do however, is to use the material disclosed before the Tribunal as a foundation upon which such allegations would rest. They claim, in justification of the delay, that the essence of the Tribunal’s remit reflected what wrongdoing they had always felt existed, but the extent, nature and depth of which they could not be expected to unearth, even if full use was made of court procedure. They claim that a very significant intervention occurred in May, 2001 when the Tribunal publicly declared its intention to investigate the very matters of which they had complained. They rationalised that no such announcement would have been made unless, even at that stage, the Tribunal had some information which of course, they were not privy to. However, it offered support to their sense of grievance. Hence, the service of writs by both sets of plaintiffs.

    62. In the hope or expectation that matters before the Tribunal could be concluded quickly, the writs were not served for almost one year. By that time it became clear that the public inquiry would take longer than originally expected, but no-one could foresee quite how long. Public sittings began in December 2002: they continued until 2010 with some significant periods of inactivity because of court challenges. Even with its extensive powers, it took the Tribunal many years to reach a conclusion on the issues. Such conclusions were, as is public knowledge, highly critical of the State defendants. Given the extraordinary nature of the background to these proceedings and the almost undoubted fact that the plaintiffs could never have progressed their actions without drawing on the Tribunal, I believe that they were entitled to have regard to the activity of this body, within the timeframe under discussion in this case.

    63. For the following additional reasons I would hold that the delay complained of is excusatory:

        (i) the unique circumstances of the events preceding the allegations made: the seriousness and gravity of the claims involving fraud, corruption, deceit, and misfeasance in public office, which if established would bring shame on State institutions and the State itself;

        (ii) the covert nature of such activities; the manner of their concealment and disguise, to such a degree that the Houses of the Oireachtas and an Taoiseach saw fit to establish a Tribunal of Inquiry to look into such matters;

        (iii) the Tribunal, even with its extensive powers took a decade to unearth its findings: during its investigation it complained of a lack of cooperation from the relevant State defendants which can be considered unprecedented, given the constitutional position of institutions which established it. Such being the case, it would have been near, if not impossible for lay litigants, even maximising court procedure and having the funds to do so, to obtain sufficient information to particularise any claim;

        (iv) the complex and multi-faceted nature of the issues involved;

        (v) the activities underlining the allegations were almost exclusively known only by the defendants who it is alleged took part in an elaborate and deceitful cover-up to prevent the discovery of the true facts;

        (vi) the fact that Kelly J. refused to dismiss the Comcast proceedings in 2005 but instead permitted the delivery of a Statement of Claim, which took place in June of that year;

        (vii) the acceptance of that Statement of Claim without demur for a period of almost twelve months;

        (viii) the delay on the part of the State defendants in taking any step to compel progress of the proceedings;

        (ix) the absence of any prejudice of any specific nature, or even an assertion of such, in this regard;

        (x) the intense involvement of the State defendants in the Moriarty Tribunal; and

        (xi) the other factors as identified in this regard by the judgment of the Chief Justice and Hardiman J. which I gratefully adopt.

    64. The State defendants complain that failure to take other steps open to the plaintiffs should weigh heavily against them. In this context they cite the procedure of applying for pre-Statement of Claim discovery. The taking of such a step in my view was an entirely unrealistic one, as borne out by the manner of the State’s participation before the Tribunal. It takes no imagination to feel the vigour of the defence which these defendants would mount to such an application. Noting that the plaintiffs were not in a position to even broadly particularise the claim, their chances of getting relief under this heading, against the likely intensity of the defendants’ opposition, can be classified as minimal. Moreover, one could not blame them for treating as pointless the possibility of a theoretical appeal from the refusal of their request made under the Freedom of Information Acts, 1997 – 2009.

    65. The State defendants also rely on Desmond as indicating that the plaintiffs should have specifically informed them of their intention to hold off until the evidence unfolded at the Tribunal. In Desmond, on legal advice, the plaintiff took a deliberate decision to stand down from further progressing his action until the Moriarty Tribunal had investigated an aspect within its remit, relevant or at least potentially relevant, to such action. The Supreme Court held that his unilateral decision in this regard could not be excusatory of the inordinate delay which had occurred. At a very minimum it was considered that he should have notified the defendants of his intention so that they could decide how best to respond, if at all. Instead they were “lulled, by the inactivity of the [plaintiff] into the natural belief that the claim was abandoned”.

    66. The instant case is entirely distinguishable from Desmond in a number of respects, including the fact that evidence of a potentially decisive nature was always available to the plaintiff, being that of himself, but more significantly because the State defendants were never “lulled” as M.G.N. was in Desmond. On the contrary, they were fully aware of the plaintiffs’ deep interest in the Moriarty Tribunal, as evidenced (i) by the fact that Persona’s legal representatives were in attendance virtually at all public sittings of the Tribunal and (ii) that when under cross-examination Mr. Tony Boyle, a director of the company, denied that he was using the Tribunal as a “kind of stalking horse” for his company’s civil proceedings. In fact he asserted that such an action would proceed irrespective of the Tribunal’s outcome.

    67. There is one other aspect in this context which should be referred to: it is that conversation which I have recorded at paragraph 17(iv) supra. Because the circumstances in which it occurred lacked formality and because the conversation at best, can only been described as “casual”, I think it would be unfair to Mr. Shaw to infer that his silence amounted to acquiescence or the like, particularly when it is unclear if the sense of the overall occasion demanded a reply. On that basis I would not consider the exchange between solicitors as determinative, but happen, apparently it certainly did.

    68. Aside altogether from the last point, there is an abundance of evidence which clearly shows that the proceedings as issued were at all stages, very much alive and were far from being discontinued or let expire. Therefore, in these circumstances any further consideration of the requirement identified in Desmond is not necessary, as its purpose in any event has been satisfied on the facts of this case.

    69. For the above reasons I would allow the appeals of both Comcast and Persona in these proceedings.

    Judgment of Mr. Justice Clarke delivered the 17th of October, 2012.

    1 Introduction
    1.1 The events surrounding the award of a GSM mobile telephone licence by the Minister for Public Enterprise in 1995 have been a matter of very significant public controversy for well over a decade now. Those events have been the subject of investigation by, and the report of, what is commonly referred to as the Moriarty Tribunal. As is widely known Esat Telecommunications Limited ("Esat"), the third named defendant in the proceedings brought by Comcast International Incorporated along with three other parties (collectively "Comcast", and the "Comcast proceedings" respectively), was successful in the competition which led to the grant of the licence in question. Comcast was one of its losing competitors. Likewise the first named plaintiff in the other proceedings which are the subject of these appeals, Persona Digital Telephony Limited, who is joined by a co-plaintiff in its action (collectively "Persona" and the "Persona proceedings" respectively), was another unsuccessful competitor. Comcast, Persona and the other plaintiffs have initiated these proceedings with a view, amongst other things, to seeking damages arising out of what was said to have been misfeasance of public office, deceit and fraud in the way in which that competition was conducted.

    1.2 It can, I think, be said that if the allegations which are made in these proceedings, and which formed the subject of the findings of the Moriarty Tribunal, were to be established in a court of competent jurisdiction, they would amount to amongst the most serious factual determinations made by a court in this jurisdiction since the foundation of the State. The allegations involve the assertion that the second named defendant in the Comcast proceedings ("Mr. Lowry"), who held the office of Minister for Public Enterprise at the time of the competition, was paid money by the fourth named defendant in the Comcast proceedings ("Mr. O'Brien") in order to influence the competition. It is alleged that such monies were paid both directly and indirectly and that Mr. Lowry, as Minister, did, in return for those monies, actually influence the competition in order to procure that Esat should win.

    1.3 However, this court is not now concerned with the substance of those allegations. In circumstances to which it will be necessary to refer in due course, the first named defendant in both proceedings (“the Minister”) applied to the High Court to dismiss both the Comcast and the Persona proceedings for want of prosecution, delay and on the basis of the court's inherent jurisdiction to dismiss proceedings when there is a serious risk that any trial would be unfair. Those applications came on for hearing before Gilligan J. who made the order sought on behalf of the Minister in both proceedings. It should be noted that the “non-State parties” in the Comcast proceedings, namely Mr. Lowry, Esat and Mr. O’Brien, did not participate in the Minister’s application. Comcast, Persona and their associated plaintiffs separately appealed to this court against the judgment and order of Gilligan J.. This court has already ruled that the appeals be allowed and that the order dismissing both proceedings be reversed. I support the decision of this court in that regard. However, it was indicated that reasons would be given at a later date. This judgment is directed to the issues which arise on those appeals and to my reasons for supporting the ruling of this court. The backdrop to these appeals is the sequence of events giving rise to both proceedings and the progress of those proceedings once commenced. As much of the relevant factual background is dealt with in other judgments I will turn only briefly to the history of relevant events.

    2 The History of Events
    2.1 There are detailed accounts of the facts to be found in the judgments of Denham C.J., Hardiman J. and McKechnie J. Those judgments set out a full account of the proceedings and their, admittedly limited, procedural history. Background facts are also set out. In addition there is an analysis of the progress of the Moriarty Tribunal insofar as it dealt with the issues concerning the award of the GSM licence. In those circumstances it is unnecessary to repeat those accounts in this judgment.

    2.2 However, there are a few additional facts which are, in my view, of some limited relevance to the issues which require to be determined in these appeals. Those facts will be dealt with as they arise in the context of a discussion of the issues debated on this appeal.

    2.3 Against that background it is necessary to turn to the test by reference to which the court ought to consider whether to dismiss civil proceedings on the basis of delay, on the one hand, or in furtherance of its inherent jurisdiction to ensure a fair trial, on the other hand; it being recalled that the Minister sought the dismissal of both of these proceedings on both of those grounds and that Gilligan J. acceded to the Minister's application in both cases on both grounds. I turn first to the test applicable where it is sought to dismiss proceedings for delay.

    3. Dismissal For Delay – The Test
    3.1 In one sense it can be said that the overall approach is well settled. In Desmond v M.G.N. Limited
    [2009] 1 IR 737, at p.749, Macken J. (who was part of the majority of this court in that case) adopted the tests which I had mentioned in Stephens v. Flynn Limited [2005] IEHC 148 being:-

          "1. ascertain whether the delay in question is inordinate and inexcusable; and

          2. if it is so established the court must decide where the balance of justice lies."

    3.2 In formulating the test in that way I had followed a long line of authority stretching back to the decisions of this court in Rainsford v. Limerick Corporation [1995] 2 I.L.R.M. 561 and Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459. I did not understand counsel on either side of these appeals to suggest that those tests were not the applicable tests. In addition I do not understand any of the recent jurisprudence in this area to question that those tests represent the appropriate questions to be considered by the court.

    3.3. However, it does have to be accepted that there has been what might, at a minimum, be considered to have been a difference of emphasis apparent from certain recent judgments in both this court and in the High Court, as to the manner in which those tests should be applied and in particular whether there was to be, as I put it in Stephens v. Flynn Limited, a re-calibration or as others have described it, a tightening up, in the application of those tests.

    3.4 That recent jurisprudence goes back to the judgment of Hardiman J. in this court in Gilroy v. Flynn [2005] 1 ILRM 290. That judgment suggested that the courts had become ever more conscious of the unfairness of, and increased possibility of injustice which attached to, allowing an action which depends on witness testimony to proceed a considerable time after the cause of action had accrued. The judgment also noted the decisions of the European Court of Human Rights ("the ECtHR"), in cases such as McMullen v. Ireland (Application no. 42297/98, 29th July, 2004) [2004] ECHR 42297/98, and the obligation, independent of the actions of the parties, on the courts to ensure that civil litigation is determined within a reasonable time. Hardiman J. also noted then recent changes in the Rules of the Superior Courts which appear to place a greater obligation on the courts not to excuse, save in special circumstances, repeated procedural failures on the part of litigants.

    3.5 Relying on those matters I expressed the view in Stephens v. Flynn, in a passage immediately after that setting out the tests approved of by Macken J. in Desmond, that:-

        "[I]t seems to me that for the reasons set out by the Supreme Court in Gilroy the calibration of the weight to be attached to various factors in the assessment of the balance of justice and, indeed, the length of time which might be considered to give rise to an inordinate delay or the matters which might go to excuse such delay are issues which may need to be significantly re-assessed and adjusted in the light of the conditions now prevailing. Delay which would have been tolerated may now be regarded as inordinate. Excuses which sufficed may no longer be accepted. The balance of justice may be tilted in favour of imposing greater obligation of expedition and against requiring the same level of prejudice as heretofore."
    3.6 That reasoning was upheld by this court in an appeal in Stephens v. Paul Flynn Limited [2008] 4 IR 31.

    3.7 However, the need for recalibration or tightening up was questioned to some extent in Desmond where Geoghegan J. (also part of the majority) indicated that he was not convinced that it was necessary to revisit the principles set out in Primor and Rainsford.

    3.8 In the light of the, at least potentially, conflicting jurisprudence on the question of whether there ought properly be a re-calibration or tightening up of the criteria by reference to which the actions or inactions of parties might be judged, I suggested an overall approach in Rodenhuis and Verloop B.V. v. HDS Energy Ltd. [2011] 1 IR 611, at pp.616-617, in these terms:-

        "As long as it remains the case that the procedure in this jurisdiction is left largely in the hands of the parties, then it follows that the pace at which litigation will progress will be highly dependent on the initiative shown by those parties. To the extent that it becomes clear that parties will be significantly indulged even though they engage in delay, then that fact is only likely to encourage delay. If parties feel they can get away with it, and if that feeling is justified by the response of the courts, then there is likely to be more delay. It seems to me, therefore, that it is necessary, in a system where the initiative is left largely up to the parties to progress proceedings, for the courts to make clear that there will not be an excessive indulgence of delay, because if the courts do not make that clear, it follows that the courts’ actions will encourage delay and, thus, will encourage a situation where cases will not be completed within the sort of times which would be consistent with compliance with Ireland’s obligations under the European Convention on Human Rights.

        As I pointed out it is correct to say that there is no jurisprudence of the [ECtHR] dealing with the circumstances in which proceedings must be dismissed for delay. However, it does seem to me that if the courts in a common law jurisdiction, and in the absence of case management for any particular category of case, to use the words of Hardiman J., “endlessly indulge” delay then that fact is only likely to increase delay and increase a failure to comply with Ireland’s Convention obligations. It seems to me that that analysis justifies the view which I expressed in [Stephens] (and which was approved of by the division of the Supreme Court which heard the appeal in that case) which was to the effect that there needed to be a tightening up or recalibration of the application of the long established principles in the delay jurisprudence, without altering the tests to be applied.

        For those reasons it seems to me that the tightening up to which I referred in Stephens is an appropriate course of action for the courts to adopt. It does not seem to me that there is any clear or authoritative view from the Supreme Court which would bind me to take a different view. I therefore propose to apply the test which I identified in [Stephens] and which was approved of by Macken J., speaking for the majority in [Desmond], but with the tightening up to which I referred in the very next paragraph of my judgment in [Stephens]."

    3.9 I see no reason to depart from the views which I expressed in Roddenhuis. The overall test remains the same. That has been the consistent position adopted in all the cases. However, it seems to me that the factors first identified by Hardiman J. in Gilroy do require that the application of that test be approached on a significantly less indulgent basis than heretofore.

    3.10 However, I should express my agreement with a number of the observations made on this question by McKechnie J. in his judgment in this case. First, I agree fully with the comments made by reference to Guerin v. Guerin [1993] I.L.R.M. 243. The circumstances of the parties and, in particular, any disparity in the resources available to the parties must always be a factor which the court takes into account. The degree of expedition and compliance with time limits which could properly be expected of large corporations involved in commercial disputes cannot reasonably be required of poorly resourced or otherwise disadvantaged litigants who may have to resort for representation to small law firms frequently accepting instructions without any guarantee of payment. Any legitimate tightening up must give all due consideration to the difficulties with which such parties are faced in progressing litigation which can, in many cases, be of significant importance to the party concerned.

    3.11 Second, I agree with the views expressed by McKechnie J. as to the need to apply any heightened standards of expedition to defendants as well. If the true rationale for a tightening up is the need for a more time-conscious regime to ensure that proceedings are determined in a timely fashion, then it follows that the need for such a regime places obligations on defendants as well. The problem with which courts in a common law system is faced is that, in the absence of active judicial case management, the pace at which litigation is to progress is left largely in the hands of the parties. While active case management has been introduced in certain categories of cases in recent times, it may not be practicable to provide such case management in all cases. Indeed a high level of (costly) management may not be suitable for all types of cases and in all circumstances. There will, therefore, remain cases where the pace of litigation does lie, to a significant extent, in the hands of the parties. But, as McKechnie J. points out, that fact places obligations on defendants as well. The Rules of Court provide various mechanisms which allow a defendant, who is concerned by the slow pace of litigation, to seek to have the process accelerated. A defendant who does not avail of those procedures is, in my view, in a different position from a defendant who has sought to speed up the process but has been frustrated in that endeavour by a failure on the part of the relevant plaintiff to respond reasonably.

    3.12 Finally, I would also agree with McKechnie J. that, while a gold standard of practice must always be striven for, it would be unjust to regard a party who, in all the circumstances, had acted with reasonable expedition, as having been guilty of inordinate delay simply because the standards of expedition demonstrated do not measure up to the very highest standards of best practice.

    3.13 With those observations in mind I do, however, remain of the view that tightening up is required. While the court will, understandably, be concerned to balance the interests of justice arising in the case before it and, in that regard, to consider all relevant facts, nonetheless the overall approach of the courts, if unduly lax, has the potential to create injustice by delay across a whole range of cases whose facts may never come to be considered by a judge, but whose progress is adversely affected by a culture of delay.

    3.14 It is next necessary to turn to the test by reference to which proceedings may be dismissed, even in the absence of fault, as a result of the inherent jurisdiction of the court.

    4. Unfairness – The Test
    4.1 That there is a separate line of authority suggesting that there are circumstances in which proceedings can be dismissed for delay, even though there is no culpability on the part of the plaintiff concerned, cannot doubted. Those authorities were analysed by Gilligan J. in his judgment in this case between pp.40 and 45. Towards the end of p.45 Gilligan J. concluded, correctly in my view, that, whilst in some of the cases there was something of a conflation between arguments relying on prejudice caused by inordinate and inexcusable delay, on the one hand, and simple unfairness, on the other hand, there remains a separate jurisdiction in the court to dismiss if there is a real prospect that the defendant will not be able to have a fair trial or that it would be unfair to require the defendant to meet the case after such a long delay.

    4.2 For the reasons which I addressed in my judgment in Kennedy v. D.P.P. [2012] IESC 34 (although that case was concerned with prohibition in the criminal context), I am concerned to ensure that proceedings should be tried on the merits in all cases where no blame can lie on the party bringing the proceedings (plaintiff or prosecutor) save where there is a high degree of assurance that the relevant defendant will not be able to get a fair trial or will suffer serious unfairness. Nevertheless, for reasons which will become apparent, it does not seem to me that the facts of this case demonstrate the sort of prejudice or impairment to the Minister in the conduct of his defence which would meet the test in any of the ways in which it has been characterised in the jurisprudence. This case is not, therefore and as should become clear in the course of this judgment, one in which it is necessary to address with some precision the precise test which is to be applied in dismissing a case where there is no blameworthy delay on the part of the plaintiff.

    4.3 However, I should make one general observation. It seems to me that the threshold which must be surmounted to justify the dismissal of proceedings where there is no culpable delay on the part of the plaintiff must necessarily be more onerous than that which applies in the case of culpable delay. If the thresholds were the same then the jurisprudence on delay in such cases would be meaningless for the level of impairment in the ability to present a defence which would have to be shown would be the same whether there was or was not culpable delay. Furthermore, a test which made it easier to dismiss proceedings where there was no culpable delay would be illogical. It follows, in my view, that whatever approach is adopted to the dismissal of cases where no culpable delay is established, it must, necessarily, require that a higher threshold be met. The rationale behind the existence of two separate bases for dismissal is that there will be some cases where the degree of unfairness to a defendant (whether because of severe impairment in the ability to mount a defence or other factors) may be so great the even a blameless plaintiff may have to suffer their proceedings being dismissed.

    4.4 Having dealt with the relevant tests I now turn to a consideration of whether the Minister is entitled to have both of these proceedings dismissed for inordinate and inexcusable delay in accordance with the jurisprudence to which I have referred.

    5. Delay
    5.1 As pointed out earlier, the first leg of the relevant test is as to whether a plaintiff can be said to have been guilty of inordinate and inexcusable delay. There was no question but that Persona, Comcast and the other plaintiffs (collectively "Persona and Comcast") were guilty of inordinate delay. Neither plaintiff contested that allegation. It is, indeed, impossible to see how any contest could have been raised. The delay between the issuing of the relevant proceedings and the filing of the statements of claim was of the order of five years. Delays of much shorter periods have been found to represent inordinate delay. Even in complicated cases, where the formulation of a detailed statement of claim would undoubtedly take some time, delays of a fraction of five years have been considered inordinate.

    5.2 In addition it is clear from cases such as Birkett v. James [1977] 2 All E.R. 801 (as adopted in both the High Court and this court in Stephens v. Paul Flynn Limited) that a party who starts their proceedings late, while within the relevant period provided for in the Statute of Limitations, bears an added burden of progressing their proceedings with expedition. The point is that the period within which proceedings have to be commenced is laid down by statute. It is not for the courts to second guess the choice of period provided for by the Oireachtas. However, the court’s role in ensuring a fair and just resolution of proceedings requires that all reasonable steps are taken to ensure that the gap between the events which are the subject of a trial and the trial itself is no longer than might be considered reasonable in the context of the limitation period provided for by the Oireachtas for that type of claim. Therefore, where a claim is started promptly, some greater degree of latitude may be allowed as to its pace of progress (everything else being equal) compared with a claim which is brought just as the limitation period is about to run out so that the period from cause of action to trial is going to be lengthy in any event. As noted in the judgment of Hardiman J., these proceedings were commenced at the very extremity of the limitation period and would, therefore, have been required to have been progressed with extra expedition. The fact that the respective proceedings were served at the limit of the period allowed by the rules for service and thus well outside the limitation period only adds to that requirement. Inordinate delay is, therefore, clear.

    5.3 Whether the first leg of the test is met, therefore, turns on whether the undoubtedly inordinate delay which occurred can also be said to be inexcusable. Both Persona and Comcast rely on substantially the same and single excuse. It is said that it was necessary to await developments at the Moriarty Tribunal in order that the respective claims could be properly formulated and pleaded at all. In those circumstances it is said that, in the very unusual situation which arose in this case, an undoubtedly inordinate delay is excusable.

    5.4 The first leg of the test, therefore, turns on whether that explanation provides an adequate excuse for the delay in question.

    5.5 Before going on to deal with that issue it seems to me to be appropriate to make a number of observations. First, there is the question of covert wrongdoing. In many cases a plaintiff wishing to pursue civil proceedings will, either of that party's own knowledge, or with the assistance of known witnesses of fact or experts whom that party can employ, have sufficient information available to it to be able to plead their case. Persons injured in accidents, whether on the roads or in the workplace, will normally be able to give a reasonable account of how the accident occurred such that their lawyers can formulate a claim on their behalf in negligence if that be stateable. Likewise, experts such as engineers or doctors can be employed to provide necessary detail if required. Similarly, parties aggrieved, in the commercial context, with those with whom they have contractual relations will normally, from their own knowledge, be able to specify the terms of any relevant contract and, at least generally, be able to set out any alleged breaches and their consequences. It may, of course, be the case that such parties will require the aid of procedural measures such as discovery or interrogatories in order to be able to present their case to its best advantage at trial. Evidence or lines of inquiry may be suggested which may lead to a stronger case. However, it would be rare in such cases that the party would not be able to formulate their claim in any meaningful way.

    5.6 However, different considerations may well arise (although not necessarily in all cases) where an allegation is made of covert wrongdoing. The problem with covert wrongdoing is, of course, that it is covert. A person who suffers from covert wrongdoing may have little or no direct knowledge of the wrongdoing. In some, perhaps many, cases a party may entertain a suspicion of, for example, fraudulent or anti-competitive behaviour which is said to have operated to their detriment. However, a suspicion that could lead to no more than a vague generalised allegation could not provide a proper basis for commencing proceedings. As was noted in discussion between the court and counsel during the appeals in this case, it will often be as a result of some event over which an aggrieved party had no control or influence that information may become available such as would allow such a party to turn a mere suspicion of covert wrongdoing into a stateable allegation. Inquiries by public authorities (including prosecution authorities) may sometimes provide the necessary detail. Whistleblowers may bring information into the public domain. A party may chance upon some useful material capable of turning a suspicion into an allegation. The important point to emphasise is that persons who wish to make an allegation of covert wrongdoing will inevitably face difficulties in being able to formulate a claim. It seems to me that all due allowance needs to be made for that fact in assessing cases where delay is alleged in claims of covert wrongdoing.

    5.7 That being said, the difficulties which such parties may encounter cannot be allowed to be an excuse for procedural inaction. It is equally the case that persons facing the kind of serious allegations which are frequently at the heart of covert wrongdoing claims are just as entitled as any other party facing a serious allegation to have the allegation concerned heard and determined in a timely manner. A party bringing a claim for covert wrongdoing cannot just sit on its hands and hope that something will turn up. Such a party is obliged to take all reasonable steps to progress their claim. However, the speed at which the claim progresses must be judged, provided that all reasonable steps are taken, against the backdrop that it may, nonetheless, be difficult to progress such a claim in as expeditious a way as the type of claim where most of the information necessary for the formulation of the claim in question will be available to the claimant.

    5.8 Second, it seems to me that a party, who wishes to adopt what might, in ordinary circumstances, be considered to be an unorthodox approach to litigation (such as by putting the proceedings on hold pending some event), is required to, at a minimum, place on record with all other parties to the litigation, that that course of action is being adopted. It does not seem to me that it is legitimate for a party to adopt an unorthodox approach to litigation on a unilateral basis. Indeed, it was the failure of the plaintiff in Desmond v. M.G.N. to inform the defendant that it was intended to await developments at the Moriarty Tribunal that led this court to view the explanation given as not being sufficient to excuse the delay in question. While Desmond v. M.G.N. and this case involved a party who was in the unusual circumstances of electing to await developments at a public tribunal of inquiry, it seems to me that the overall principle is more far-reaching. A party who is likely to have to spend a much longer period than might ordinarily and reasonably be expected in preparing court documents or in preparing to take an important step in proceedings (such as serving a notice of trial or certifying the case as being ready) because of delays being encountered in, for example, procuring expert reports, has, in my view, an obligation to bring those difficulties to the attention of all other parties.

    5.9 In different contexts it has often been said that litigation is a two-way process. However, it seems to me that all parties are entitled contemporaneously to reasonable disclosure of an intention to adopt an unorthodox approach which is likely to lead to a delay of a significant variety in the progress of litigation. It seems to me that much greater weight ought legitimately be placed on explanations which are tendered contemporaneously thus affording other parties a reasonable opportunity to take whatever steps may be considered appropriate in the event that it is considered that the proposed unorthodox course of action is not justifiable. Unorthodox action signalled contemporaneously and not contested at the time is likely to be more readily accepted by the court as providing an excuse than the same action taken unilaterally and only referred to after the event as retrospectively providing an explanation.

    5.10 Against that backdrop it is necessary to turn to the facts of these cases. In that context there is a slight difference between the respective plaintiffs. I will deal with that difference in due course. However, as pointed out, the broad excuse tendered is the same. It is accepted that the proceedings were only issued at the last minute so as to ensure that the Statute of Limitations did not run. Both plaintiffs seemed to suggest that suspicions about the integrity of the licence awarding process were held from the beginning. However, it does not seem on the evidence currently before the court that those suspicions could have matured into anything more than a mere suspicion until certain matters came into the public domain in the period immediately prior to the expiry of the limitation period. One such matter was a newspaper report which suggested that a company which formed part of the winning consortium had made a significant party political donation at or around the time when the licence process was afoot. The second, and it would appear connected, development was the announcement by the Moriarty Tribunal that it intended to inquire into the award of the GSM licence. On the evidence currently available it does not seem to me to be unfair to characterise those events as being ones which could reasonably cause a mere suspicion to mature into an at least stateable allegation.

    5.11 However, at the time both proceedings commenced it does not seem to me that either plaintiff would have had available to it anything remotely like sufficient information to formulate a detailed statement of claim. It is in that context that both Persona and Comcast say that it was legitimate for them to await developments at the Moriarty Tribunal so as to place them in a position where they would be able to formulate a statement of claim. At the level of principle it seems to me that Persona and Comcast are correct in that regard. The allegation made is of highly covert activity. There was no reasonable basis on which either Person or Comcast could have been expected to have had sufficient information to formulate a statement of claim in any meaningful way at the time their respective proceedings were issued. There is, in my view, a significant difference between having sufficient information to justify issuing proceedings in circumstances which would not amount to an abuse of process, on the one hand, and having sufficient information to be able to formulate a claim in a detailed way, on the other.

    5.12 Against that general proposition, however, the Minister makes a number of arguments. It is said that there were courses of action available to both Persona and Comcast which could, and it is said should, have been adopted in the light of the undoubted obligation which rested on Persona and Comcast, having regard to their very late commencement of proceedings, to progress with all possible expedition.

    5.13 First, it is said that pre-statement of claim discovery of documents could have been sought. While there are, undoubtedly, circumstances in which the court has a jurisdiction to depart from the normal procedure of allowing discovery only when the issues between the parties have been knit by the exchange of pleadings, I am not convinced on the facts of this case that pre-statement of claim discovery could have appeared to Comcast or Persona as being likely to supply them with the necessary information to formulate their claims. Doubtless any documents held by the Department of Public Enterprise, arising out of the award process, could have been sought. However, the key information concerning the very serious allegations of wrongdoing, which are at the heart of these proceedings, involved a money trail. One should, of course, avoid over-reliance on hindsight. Nevertheless, it is clear that establishing the series of transactions which, in the view of the Moriarty Tribunal, demonstrated monies being paid to Mr. Lowry, involved a significant degree of forensic disclosure from financial institutions and others with the benefit of the significant powers of compellability which are available to a tribunal of inquiry. Even without the benefit of that hindsight it seems to me that it was not unreasonable for Persona and Comcast to conclude that discovery was unlikely to produce the necessary detail and that it was much more likely that any such detail would, if it existed, become available through the tribunal.

    5.14 The second and third matters relied on by the Minister are the suggestions that Persona and Comcast could have either applied to the court to stay their own proceedings pending developments at the Moriarty Tribunal or, alternatively, ought at least to have indicated to the Minister that it was their intention to "park" the proceedings pending such developments at the Moriarty Tribunal and thus enabling the Minister to take whatever action might have been considered appropriate in those circumstances.

    5.15 It seems to me that both of those factors can be considered together. It is true that there have been come cases (such as Doe v. Armour Pharmaceutical Company Inc. [1994] 3 I.R. 78) where the court has allowed a plaintiff to put its own proceedings on hold (by granting a stay). However, most of those cases involved parties who had other proceedings in being (perhaps in another jurisdiction) which it was suggested ought to be decided first or where a challenge existed to the entitlement of another jurisdiction to determine certain issues and where the Irish proceedings were a fallback to preserve the plaintiff's position in the event that the challenge to the foreign court's jurisdiction was successful. None of the cases cited in argument came close to the circumstances which existed in these cases. However, that leads to the third point. Whether or not Persona and Comcast could have been proactive and sought to stay their own proceedings, I am satisfied, for the reasons already analysed, that it is not appropriate for a party to take the unorthodox step of, in effect, "parking" proceedings without at least making some attempt to raise that question with the other parties to the relevant litigation. Subject to one matter which arises only in the context of the Persona proceedings, no attempt so to do was made by either plaintiff in these proceedings. This is an issue to which I will return.

    5.16 Finally, attention is drawn by the Minister to the fact that, long before the statements of claim in these proceedings were filed, counsel on behalf of the Moriarty Tribunal had, as is the normal practice, given a lengthy opening statement at the commencement of the module of the tribunal which was concerned with the award of the GSM licence. On that basis it is said that, at least from that time, there was significant information available to both plaintiffs which would have allowed the formulation of a statement of claim in, it is said, much the same form as the statements of claim which were ultimately filed. It is in that context appropriate to note that, in reality, the statements of claim only came to be filed when motions were brought which had the effect of compelling the delivery of statements of claim on risk of the respective proceedings being struck out. I will also return to this issue.

    5.17 It seems to me that there is some substance to the State's argument under the latter two headings just referred to.

    5.18 In that context, it is, however, important to note three countervailing factors which have some influence on an overall assessment of those issues. First, attention was drawn to the fact that a warning letter was sent by the Minister to the solicitors for Persona which gave a period of 21 days within which to file a statement of claim in default of which an application to "strike out these proceedings for want of prosecution" was threatened. The statement of claim in those proceedings was, in fact, filed within that period of 21 days.

    5.19 There are two express provisions to be found in the rules which allow for an application to dismiss for want of prosecution. The more general provision is to be found in O.122, r.11 which says the following:-

        "[…] In any cause or matter in which there has been no proceeding for two years from the last proceeding had, the defendant may apply to the court to dismiss the same for want of prosecution, and on the hearing of such application the Court may order the cause or matter to be dismissed accordingly or may make such order and on such terms as to the Court may seem just.[…]"
    5.20 A more specific provision is found in O.27 which applies in circumstances where a statement of claim is not filed in the time required by the rules and where, in cases such as those with which this judgment is concerned and involving a claim for unliquidated damages in contract or tort, the moving party is required to write a preliminary letter which offers an extension of time.

    5.21 It may be that it is also possible to invoke the courts inherent jurisdiction to dismiss in the case of inordinate and inexcusable delay even in cases which are not governed by the two specific rules to which reference has been made. In that context it is relevant to note paras. 15-73 of Delaney and McGrath Civil Procedure in the Superior Courts (3rd Edition Thomson Round Hall 2012) and the reference therein to the decision of this court in Collins v Dublin Bus (Unrep., Supreme Court, Murphy J., 22nd October, 1999).

    5.22 Under the rules, therefore, a claim to dismiss for want of prosecution arises either where the statement of claim is not filed on time, in which case an opportunity to file within 21 days must be given, or where there has been no action for two years. In the latter case no offer of an extension of time need be made. An application to dismiss for inordinate and inexcusable delay may also arise under the court's inherent jurisdiction in other circumstances.

    5.23 It is clear, therefore, that the Minister had a number of options available to him. It is certainly the case that the Minister could have moved under O.122 for it is clear that a period of much more than two years had elapsed with no proceeding. It may also be that the Minister could also have moved under the inherent jurisdiction. It is interesting to note that the motion brought by the Minister in the Persona proceedings seeks, in the alternative, an order "pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the defendants for delay and/or want of prosecution" and an order "pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings as against the defendants in the interests of justice". No specific provision of the Rules of Court is referred to. It is not clear, therefore, as to whether the Minister actually considered that he was proceeding under O.27. Certainly the fact that a warning letter of the type that is required, by the rules, to be sent in advance of making an application to dismiss for want of prosecution under O.27 was written. However, be that as it may, it is clear that the Minister had a number of options open to him at the time when it was decided to write to Persona. Even if the Minister considered moving under O.27 (which would, as has been pointed out, have required the writing of a letter extending time for 21 days) the Minister could have chosen an alternative means of action.

    5.24 It seems to me that O.27 r.1 and r.1A are primarily designed as a method of speeding up proceedings even though the form of the order which may ultimately be sought, is to dismiss for want of prosecution. That situation is analogous to that which now pertains under O.27 r. 8 where, in the cases to which that rule applies, a plaintiff is required to write a similar letter extending time for defence prior to initiating a motion for judgment in default of defence. While the ultimate order which would be sought in the absence of the defence being filed within the extended period granted by the letter is an order for judgment nonetheless the primary purpose of the order is to provide a mechanism whereby the filing of a defence may be speeded up rather than the proceedings brought to an end.

    5.25 There can be little doubt, therefore, that by choosing to write a letter extending time (whether because of a desire to move under O.27 or otherwise) the Minister would have conveyed the impression to Persona that he was more concerned with ensuring that the proceedings were now moved along after a period of inaction rather than that the Minister desired to bring the proceedings to an end. While it does not seem to me that such an action on the part of the Minister creates a formal estoppel preventing the Minister from thereafter moving to dismiss (in the absence of further significant delay) and while I would not go so far as McKechnie J. in treating the Minister's actions as an abuse sufficient to debar the Minister from seeking to have the Persona proceedings dismissed, nonetheless the choice by the Minister to write the letter extending time seems to me to be a factor to which some very significant weight must be attached insofar as Persona is concerned for it would reasonably have conveyed to Persona that the Minister was not then contemplating the dismissal of the proceedings for delay. Persona acted on that understanding to its detriment by incurring the costs of preparing and serving the statement of claim. It seems to me that that situation also needs to be taken into account in assessing the next factor on which Persona places reliance.

    5.26 The second factor relied on by Persona is a conversation deposed to in the affidavits filed which is said to have occurred, at the tribunal, between a member of the solicitors firm representing Persona and a solicitor in the Chief State Solicitor's Office who was involved in representing State interests at the Moriarty Tribunal. It does not appear that there is any evidence denying that such a conversation took place. On that basis it seems that the court must, on the evidence, conclude that there was a conversation in which it was intimated on behalf of Persona that the Persona proceedings would not be progressing pending developments at the tribunal and that no objection to that course of action was intimated on behalf of the Minister either then or subsequently.

    5.27 It seems to me that too great a weight cannot be attached to what was a relatively informal conversation which occurred while both solicitors happened to be present at the tribunal. In order to properly comply with the obligation to keep all other parties informed of any proposed unorthodox conduct of proceedings (on the basis of the analysis which I have earlier conducted) it seems to me that something more formal than that casual conversation was required. Nonetheless, it seems to me that the fact of that conversation can be taken into account in the overall assessment of excusability. In addition, it seems to me that it would have been reasonable for Persona, on receiving the relevant correspondence extending time for filing a statement of claim by 21 days, to have assumed that the Minister had broadly accepted inaction up to that point in time, but then wished the proceedings to progress.

    5.28 Finally, attention was drawn to the fact that, when a senior official of Persona was giving evidence before the tribunal, counsel for the Minister put it to him that the tribunal was being used as a "stalking horse" for the proceedings; thus indicating, indirectly at least, an implicit knowledge of the plaintiff’s intended course on the part of the Minister.

    5.29 Taking all three factors together it seems to me that the Minister must, at least in a general way, have been aware of the fact that the respective plaintiffs (certainly in the case of Persona and, by implication, it would follow that of Comcast also) were awaiting developments at the Moriarty Tribunal before progressing their claim.

    5.30 It is next necessary to turn to the point made on behalf of the Minister to the effect that, whatever might have been the situation when the proceedings were issued, at least from the time when the opening statement on the GSM licence module was made by counsel for the tribunal, both plaintiffs had sufficient information available to formulate a statement of claim. It is again important not to view matters with the benefit of hindsight. However, it does need to be noted that it is in the nature of tribunals, conducted as they are in an inquisitorial manner, that developments are likely to occur as the hearings progress. Developments of some materiality to the issues which arise in both of these proceedings did in fact occur. While it is unnecessary to set it out in detail, certain payments alleged to have been routed to Mr. Lowry by Mr. O'Brien through the English football club Doncaster Rovers were the subject of developments at the tribunal which, in fact, post-dated the time when the statements of claim in these proceedings were filed. In that context it is said that there may well be applications to amend the proceedings to include further allegations based on what were said to be the revelations made in that regard at the Moriarty Tribunal. I express no view on whether such an amendment could or should be allowed.

    5.31 However, that fact does show that it was not unrealistic to anticipate that there might be developments as the proceedings at the tribunal continued. In fairness to Persona and Comcast it does also need to be noted that it was anticipated at the time when the module concerning the GSM licence commenced that the tribunal would complete the hearing of evidence on that module in a relatively short period of time. As we all know that turned out not to be the case. However, a decision to await developments needs to be seen in the context both of the likelihood that such developments might well occur and the fact that it was anticipated that all relevant information would be available in a relatively short period of time. In that context I agree with the views of Hardiman J. that there could be no basis for awaiting the result of the tribunal itself. The views expressed by a tribunal may be of considerable public importance. However, those views could have no bearing on civil proceedings. It follows that, while the parties might, undoubtedly, be very interested to hear the conclusions of the tribunal, those conclusions could have no effect on civil proceedings and therefore awaiting the result of the tribunal's findings could not provide any justification for delaying the progress of civil proceedings. What is, at least in general terms, potentially justified, is waiting to see what information may become available through the exercise by the tribunal of its powers of compellability. Any such waiting would necessarily only justify delay up to the conclusion of the evidence hearing process for, after that time, there could be no reasonable expectation of any further material developments which could have a bearing on the proceedings.

    5.32 While it might be said that Persona and Comcast did, when counsel for the tribunal's opening statement had been completed, have a significant factual basis which ought to have allowed a statement of claim to be formulated in both cases, there does seem to me to be some merit in the point made in response by counsel for both plaintiffs. It was said that it was reasonable to anticipate, given the fluid nature of tribunals, that there would be developments. For the reasons already set out, I am satisfied that that is a reasonable position to take. However, counsel went further and suggested that if, as the Minister argued, a statement of claim should have been filed soon after the opening statement, there was a very real likelihood that that statement of claim would need to have been reassessed from time to time in the light of developments at the tribunal (leading, in all likelihood, to a number of amendments to the statements of claim) and that, in those circumstances, it was reasonable to await developments during the module concerned with the GSM licence so as to be able to formulate the claim in as comprehensive a fashion as possible. In that context both counsel responded to the point made on behalf of the State, to the effect that the statements of claim may still need to be amended, by drawing attention to the fact that both plaintiffs were placed in a position where they had to file the best statement of claim that they could or else face their respective proceedings being dismissed. All in all I am satisfied that it was not unreasonable for Persona and Comcast to seek to await as many developments of the Moriarty Tribunal, relative to their proceedings, as they could before filing a statement of claim. However, it seems to me that the point made against both Persona and Comcast, which accuses both of having taken unilateral action in that regard without putting the Minister on notice, applies equally to the excuse tendered for failing to file a statement of claim after the opening statement as it does to the general excuse tendered for delay.

    5.33 Taking all of those factors together, the matter which causes me most concern is the fact that neither Persona nor Comcast took any formal steps to inform the Minister that it was their intention to, in effect, "park" the proceedings pending developments at the Moriarty Tribunal. By not adopting that formal position, it seems to me that the Minister was, at least to some extent, prejudiced by being deprived of the opportunity of taking advice on, and taking whatever steps might be advised in relation to, the situation which would then have become clear. For that reason it does not seem to me that it can properly be said that the delay in these cases is fully excusable.

    5.34 However, in assessing the extent to which delay might nonetheless be blameworthy it seems to me that the court must take into account the fact that, in the context of an allegation of covert wrongdoing where a public tribunal with significant powers of compellability was conducting a highly relevant investigation, it was, at least in general terms, reasonable to await developments. It is the failure to make sufficiently clear that that course of action was being adopted that leads me to conclude that the delay is not fully excusable. For the reasons already analysed I am not satisfied that pre-statement of claim discovery could reasonably have been seen by either plaintiff as being likely to provide the information necessary to produce a statement of claim on the facts of this case. In addition, while some reasonable detail must have been available to both plaintiffs as soon as counsel's opening statement at the tribunal had been made, it was not, again at the level of principle, unreasonable to wait for what then seemed likely to be a relatively short period of time, to ascertain whether further information might come out. The only real criticism that can be made of both plaintiffs in that context was that it would, perhaps, have been more prudent, as it became clear that the relevant module was going to take a lot longer than was first anticipated, to again adopt the formal position that the statement of claim was to await further potential developments at the tribunal, thus enabling the Minister to take whatever action it might consider appropriate in the light of that position being adopted. Finally, for the reasons already analysed, I am satisfied that the Minister must have been, at least in general terms, aware, despite the fact that neither Persona nor Comcast had formally notified it of the fact, that the proceedings were being parked pending the developments of the Moriarty Tribunal.

    5.35 In all those circumstances it seems to me that it is appropriate to characterise this case as one where the explanations given by both plaintiffs go some significant way towards providing an excuse but do not render the delay fully excusable in all the circumstances. In that context it is, therefore, necessary to turn to the balance of justice.

    6 The Balance of Justice
    6.1 On the facts of this case it seems to me that the starting point for consideration of where the balance of justice lies must be to give all proper recognition to the fact that the delay in question, while inordinate, was, for the reasons already analysed, in my view, significantly, although not completely, excusable. In addition to that factor, the issues which are raised in these proceedings involve questions of high public interest. While that fact is not, of itself, decisive, it does seem to me that some significant weight needs to be attached to it. A definitive ruling by a court of competent jurisdiction on the serious questions of fact which lie at the heart of the allegations in both of these cases is a matter to which appropriate weight should be attached.

    6.2 In all cases where the court has to consider the balance of justice the extent of any prejudice to the defendant caused by delay needs to be assessed. In that context it is important to note that the Minister did not put forward any claim to specific prejudice in the form of absent witnesses or missing documentation. The Minister sought solely to rely on the undoubted general prejudice that may arise when any proceedings are conducted a very long time after the events under scrutiny. It was in that context that Gilligan J. characterised the State's prejudice as moderate.

    6.3 While one should not become overly enmeshed in terminology on degree such as "mild", "moderate", "severe" or "extreme", I would, respectfully, disagree with Gilligan J. and would instead characterise the prejudice established on behalf of the Minister in this case as being mild. A number of factors need to be taken into account. At least so far as many of the issues which are likely to arise in these proceedings at trial are concerned, this case can be regarded as a so-called "documents" case, where there are contemporary records of much of the matters which will require to be addressed in evidence. It is, of course, the case that this is not a pure "documents" case where the issues turn on the construction of documents and where oral testimony is likely to be of only marginal relevance. In such cases prejudice caused by delay will be non-existent or extremely remote. However, the availability of contemporary records will, in my view, at least so far as a lot of the issues likely to arise are concerned, minimise any risk of prejudice.

    6.4 There are, it has to be said, some issues which are likely to arise (if one takes into account the matters which influenced the views of the Moriarty Tribunal and which are, subject to appropriate evidence being capable of being led, likely to figure at the trial of these respective proceedings) which are not reflected in contemporary documents. In that context counsel for the Minister drew attention to a passage from my judgment in Stephens v. Flynn Limited where, at p.13, I said the following:-

        "He has not, however, been able to point to any specific witness who is no longer available. It must also be taken into account that there are, apparently, statements of the relevant witnesses to the events of the 5th December, 1995 taken by the Gardaí on the occasion in question. That being said an issue as to the credibility of witnesses (which will almost certainly arise) will be all the more difficult of resolution where those witnesses are being asked to recollect matters that occurred so long ago. While the prejudice may not be quite as great as the Defendant contends for I am satisfied that it will nonetheless be of some significance."
    6.5 Based on that passage, it is said that, while the fact that almost all of the witnesses likely to be called in these proceedings will have made statements to the Moriarty Tribunal in which they will have recorded their accounts is a matter to which some weight can be given, it does not displace the prejudice that may arise when the court is called upon to assess the credibility of those witnesses. The reasoning behind that passage from Stephens v. Flynn Limited is that experience tells that a court, when faced with having to choose between the accounts of two or more witnesses and in the absence of contemporary objective or forensic evidence which may give a clear indication as to which account should be preferred, will often have to base an assessment of the evidence on the court's impression of both the truthfulness and accuracy of the recollection of the witnesses concerned. In at least some cases the choice may be difficult. In that context little things can matter. Against that background, while the fact that parties may, a long time ago, have made a witness statement, which may provide some, but not too great, assistance for the court in forming its impression of the truthfulness of witnesses; ultimately the court’s assessment may turn on their ability to describe aspects of the events not recorded in their witness statements.

    6.6 However, the circumstances of this case are almost unique. Not only have all (or almost all) likely witnesses given careful written statements to the Moriarty Tribunal, those witnesses have been the subject of exhaustive cross examination on behalf of many interested parties and, indeed, on examination by the tribunal itself. Thus any likely points of detail on which the credibility of witnesses might turn, even if not included in the relevant witnesses' written statements to the tribunal, are likely to have already been explored in oral testimony. That is not to say that some further nuanced questions might not arise at a trial of these proceedings. However, because the relevant evidence has not only been recorded in writing but also tested by cross-examination, it seems to me that the likelihood of prejudice is significantly reduced.

    6.7 Having regard, therefore, to the significant, although not complete, excusability of the delay, to the significant public interest in having these matters of high public controversy determined in a court of law, and to the mild level of any prejudice, I am satisfied that the balance of justice in this case falls in favour of allowing the proceedings to continue. I have come to that view despite applying a stricter approach to excusability and the balance of justice which, for the reasons already analysed, I am satisfied is appropriate. However, it bears repeating that the facts of this case are truly unique.

    6.8 Having reached those conclusions it is necessary to turn briefly to the second leg of the case made on behalf of the Minister which was to the effect that the proceedings should be dismissed, even in the absence of any culpable delay, because of the real risk of an unfair trial.

    7 Risk of an Unfair Trial
    7.1 Irrespective of whatever threshold might be appropriate (and for the reasons already analysed it may be that a somewhat higher threshold than that identified in the existing jurisprudence might need to be considered in an appropriate case) I am satisfied that the Minister has failed to establish a sufficient risk of an unfair trial.

    7.2 For the reasons already analysed I am satisfied that it is appropriate to characterise the likely prejudice or impairment to the Minister in the conduct of its defence as being mild. While it is true that it is likely that the trial of these proceedings will take place the best part of 20 years after most of the events which will be under scrutiny, nonetheless there are a whole series of unique factors which render the conduct of such a trial nonetheless unlikely to be unfair. For those reasons, it seems to me, the second leg of the State's application must also fail.

    8 Conclusions
    8.1 For the reasons set out, I am, therefore, satisfied that there was inordinate delay which, although significantly excused, was not fully excusable. On that basis it is necessary to consider the balance of justice. For the reasons set out I am satisfied that that balance favours the continuance of these proceedings.

    8.2 Likewise I am satisfied that the Minister has failed to establish the sort of impairment to his ability to conduct a defence of these proceedings, or, indeed, any other delay-induced unfairness, such as would warrant the dismissal of the proceedings even if there were no culpable delay.

    8.3 It is for those reasons that I support the ruling already given to allow the appeals in both cases and substitute an order dismissing the Minister's application on each of the notices of motion before the court.



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