A HIGH COURT judge has ordered Denis O’Brien to discover documents in a case taken against him over the awarding of the country’s second mobile phone licence to his company in the 1990s. 

O’Brien, along with the State, is being sued by Persona Digital Telephony Limited and Sigma Wireless Networks limited, who were unsuccessful bidders for the phone licence. 

Independent TD Michael Lowry, who was Minister for Communications at the time, is a notice party in the case.

The mobile phone licence was ultimately awarded to O’Brien’s Esat Digifone consortium in 1996.

The awarding of the licence became the subject of investigation by the Tribunal of Inquiry into certain Payments to Politicians and Related Matters, also known as the Moriarty Tribunal.

The Persona/Sigma consortium brought High Court proceedings claiming the tender process was corrupted by Lowry, who abused his public office, accepted payments and/or benefits from or on behalf of O’Brien or Esat. 

The consortium claims that were it not for this, they would have won the tender competition. O’Brien and Lowry deny the claims.

O’Brien has refused to discover the documents, claiming that they were provided to him in confidence by the Moriarty Tribunal.

In a judgement on discovery today, Ms Justice Emily Egan said no compelling argument has been made “that the public interest in the proper execution of the functions of the Tribunal, or of Tribunals of Inquiry generally, requires non-disclosure of the documents in dispute”.

The judge said that any such detriment to the public interest is “hypothetical and remote” and that the vast majority of the documents in dispute over which confidentiality is asserted “are decades old”.

“The Tribunal has carried out its inquiry and has concluded that there was corruption at the highest level of Irish politics which impacted on the award of the GSM licence,” Ms Justice Egan said. 

She said that in the present case, there are well over a thousand documents in dispute. “All of the documents in dispute were included by the Tribunal in the public sitting books,” she said.

This is material which the tribunal “culled from a much wider suite of documentation precisely because it was adjudged to be of sufficient relevance to circulate in advance of public sittings in large part devoted to analysing the same broad issues as arise for determination in these proceedings”, she said.

She said it is reasonable to conclude that the tribunal considered the documents in dispute to be “highly relevant to the very matters that it was investigating”.

Ms Justice Egan said it may well be, for example, that O’Brien believes that the tribunal’s interpretation of the documents in dispute, or the importance given to them was flawed.

“Mr. O’Brien will have an opportunity to make any such arguments, or to place such documentary material or oral evidence before the court as may be appropriate, at the trial of these proceedings,” she said.

“But it is difficult to credit an argument that the documents in dispute are not likely to be highly relevant to the matters to be determined in this case.”

Concluding, Ms Justice Egan found that the wide circulation of the public sitting books, which include the documents in dispute, “substantially lessens the weight to be attached to any subsisting confidentiality they enjoy”.

She also found that any confidentiality persisting in relation to the documents in dispute “is outweighed by the interests of the administration of justice in their production and inspection”.

Ms Justice Egan ordered O’Brien to furnish a supplemental affidavit of discovery of the documents in dispute, and further ordered that they be produced for inspection.