Allowing Persona/Sigma amendment would be 'recipe for chaos', lawyer for Denis O'Brien tells High Court

And a lawyer for the State, which also opposes Persona Digital Telephony and Sigma Wireless Networks' amendment application, said civil servants would be unfairly prejudiced if they were required to have to respond to new claims relating to an award process which took place some 22 years ago.

Mr O'Brien, the Minister for Public Enterprise and the State, are defendants in the Persona/Sigma actions over the awarding of the licence to Mr O'Brien's then Esat Digifone consortium in the mid-1990s.

They deny claims made by Persona/Sigma which initiated its case in 2001. Following a number of legal issues and challenges since then, they sought earlier this year sought to amend the statement of claim.

It was originally claimed, among other things, the licence competition was conducted unfairly and that Esat won because of bribery of the then communications minister, now independent TD, Michael Lowry.

The case was originally against the State with Mr O'Brien and Mr Lowry as notice parties. In 2014, the High Court ruled on the application from Mr O'Brien, that he was entitled to be added as a defendant in order to properly defend the implicit claims of bribery by his company.

In the meantime, in 2011, the Moriarty Tribunal published its report and made findings adverse to Mr Lowry and Mr O'Brien.

In 2012, the Supreme Court had also overturned a High Court ruling striking out Persona/Sigma's action over delay which meant the case could continue.

Persona/Sigma, which had got the assistance of a UK third party litigation funder to continue its action, then asked the courts to clarify whether this type of funding was legal here. The Supreme Court ruled it was not in 2017.

Persona/Sigma had to resolve their continued funding and when this was done, they applied earlier this year to amend the statement of claim against the State and Mr O'Brien.

Against the State, damages were claimed for, among other things, fraud and causing damage by unlawful means. Against Mr O'Brien, there was a new claim of unjust enrichment and the seeking of account of profits.

John O'Donnell SC, for the State, said these were new allegations, which by the time they go to trial will relate to a matter that is 25 years old. It will require civil servants to, for instance, recall conversations that occurred that long ago about new claims there had been interference by Mr Lowry in the competition process, he said.

That was extremely prejudicial to his clients and should not be permitted, he said.

Paul O'Higgins SC, for Mr O'Brien, said there had been a paucity of explanation by the plaintiffs for the delay in this case.

As early as 2013, Mr O'Brien's solicitor had asked the plaintiffs to outline the basis of their claims against him in explicit terms, counsel said. The issue of a third-party funder for their case, which had to be dealt with by the court, was at the behest of the plaintiffs, not the defendants.

Amending the claims to those of unjust enrichment and account of profits completely changes the case and would be a radical move in circumstances where it is four years since the plaintiffs were asked to explicitly state their case against Mr O'Brien, he said.

It was completely different to the basis of the claim and to allow amendments at this stage would be "a recipe for chaos", he said.

Ms Justice Teresa Pilkington reserved her decision.