Persona decision leaves Ganley’s Esat case last one standing

One down, one to go.

The High Court has, for now, scuppered businessman Tony Boyle’s lawsuit, funded by a specialist English litigation company, suing the State over the mobile phone licence awarded to Denis O’Brien’s Esat in 1996.

Boyle's Persona consortium was one of the underbidders for the licence, which the Moriarty tribunal has found was "delivered" for Esat by Michael Lowry, then a Fine Gael minister. In findings disputed by both Lowry and O'Brien, the tribunal also discovered financial links between the two men.

Lawsuit

Yesterday’s decision on the Persona case still leaves one other lawsuit over the Esat licence award in train.

Declan Ganley, the Galway- based businessman and Libertas founder, is also suing O'Brien, the State and Lowry. He was a member of the Cellstar consortium that was also an underbidder to Esat.

Boyle’s case has been halted over its reliance on “champerty”, a medieval prohibition against third-party funding of legal cases for a slice of the proceeds.

Ganley is a multimillionaire and has no need to strike a third-party funding deal to cover the costs of his case. If his legal action doesn’t make it to court, it won’t be because of champerty. “Today’s Persona ruling is immaterial to our case,” said Ganley yesterday, speaking from Mexico.

He confirmed he still intends to sue O’Brien and the other defendants.

Boyle, meanwhile, says he is considering an appeal against the champerty ruling. The case is back for discussion of costs in the High Court on May 12th.

It is likely that Boyle will have until the end of the third week of May to decide whether to challenge the ruling. If he does, he is thought likely to skip the Court of Appeal and go straight to the Supreme Court to ask it to set aside the obstacle of champerty in this case.

The Supreme Court has already stated that the circumstances surrounding the licence award are of significant public importance. Boyle may be hoping he gets a more sympathetic hearing than he got from the High Court.

The Moriarty tribunal findings do not equate to the findings of a court of law. The tribunal findings are also not admissible as evidence in any court case, although a legal source says they would provide a “pathway” for a lawsuit.

If either the cases brought by Boyle or Ganley ever gets to a trial, it would be the first time the alleged corruption surrounding the licence award – strongly denied by all the defendants – was heard before a court.

Huge damages

Were either underbidder to win their case, the potential ramifications would be massive. Esat was later sold by O’Brien for close to €3 billion. If the State lost, taxpayers could be on the hook for a huge damages award.

For O’Brien, who has consistently and vehemently rejected the Moriarty findings, it would be devastating for his business reputation internationally if he lost. He would also likely have to cough up for damages. The Esat licence award provided the bedrock for his later financial success.

Boyle’s Persona consortium only just missed out on the licence, and was the second- placed bidder behind Esat. Ganley’s consortium was sixth, so it could potentially be more difficult for him to show a court the management of the awarding process left him out of pocket.

It is unclear when Ganley’s case will next come before a judge. Legal documents have not been filed since last year. He is understood, however, to be looking forward the prospect of getting day in court.