High Court of Ireland Decisions

 

THE HIGH COURT

                    [2025] IEHC 110

              Record No. 2001/9223P

BETWEEN

 

PERSONA DIGITAL TELEPHONY LIMITED AND

 SIGMA WIRELESS NETWORKS LIMITED

PLAINTIFFS

AND

 

THE MINISTER FOR PUBLIC ENTERPRISE, IRELAND AND

THE ATTORNEY GENERAL AND DENIS O'BRIEN

DEFENDANTS

AND

MICHAEL LOWRY

            THIRD PARTY

 

JUDGMENT (ex tempore) of Ms. Justice Emily Egan delivered on the 20th day of February, 2025

1.             This ruling is delivered in respect of an application to correct an alleged factual error in an earlier judgment.

2.             On 27^th January 2025, I delivered judgment ([2025] IEHC 33) in these proceedings ("the principal judgment") in respect of the plaintiffs' application for further and better discovery (or for inspection) of a substantial number of documents falling within the scope of an agreed order for discovery made by this court on 4^th May 2023. The fourth named defendant, Mr. Denis O'Brien ("Mr. O'Brien") had refused to discover these documents because they were provided to him in confidence by the Moriarty Tribunal of Inquiry into Payments to Politicians and Related Matters ("the Tribunal"). In the principal judgment, I determined that where discovery (or indeed inspection) is sought of confidential documents, the court must engage in a balancing exercise to determine whether any duty of confidence was outweighed by the requirements of the interests of justice. The court was therefore required to balance the public interest in preserving the Tribunal's confidentiality as against the public interest in the proper administration of justice.

3.              In considering the public interest in preserving the Tribunal's confidentiality, I stated as follows at para. 87 of the principal judgment ("para. 87"):

            "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. It would be ironic if this court were to hold that the public interest in the proper and efficient running of the Tribunal requires that parties, who contend that they were damnified by the very process inquired into by the Tribunal, may not access documents deemed highly relevant by the Tribunal, in order to prosecute proceedings for the vindication of their rights. Such a decision would be even more incomprehensible in circumstances where the documents in dispute, accepted as being relevant to the matters at issue in these proceedings, are the subject of an uncontested order for discovery made by this court and where, in all likelihood, they have been furnished by the Tribunal to the plaintiffs' opponents in these proceedings."

4.             In considering the public interest in the administration of justice in bringing about a fair result in these proceedings, I noted at para. 94 of the principal judgment that the conclusions reached by the Tribunal were legally sterile and that Mr. O' Brien could for example, question the authenticity or admissibility of the documents in dispute and could place any documentary material or oral evidence before the court as may be appropriate, at the trial of these proceedings. I continued:

  "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. As such, any public interest consideration supporting the confidentiality of the documents in dispute must be weighed against the conflicting interest of the plaintiffs to have access to such documents as may be necessary to enable them to fairly and properly prosecute this action."

5.              This application arises because Mr. O'Brien contends that I made a factual error at para. 87 in stating as a fact that the Tribunal "concluded that there was corruption at the highest level of Irish politics which impacted on the award of the GSM Licence". Mr O'Brien states that it is a matter of fact that no finding of corruption in relation to the GSM License was made by the Tribunal in Volume II of its' Report.

6.             The parties have engaged in correspondence on this issue in which they set out their respective positions, as summarised below.

7.             In support of his application, Mr. O'Brien relies upon Order 28 rule 11 of the RSC which provides inter alia that: "Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected without an appeal..."

8.             Mr. O'Brien submits that I ought to rely upon Order 28 rule 11 of the RSC which he states, "provides a mechanism for the correction of clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission at any time without an appeal". This court ought therefore to delete the first sentence of para. 87, which he argues, "clearly emerged through inadvertent oversight".

9.             The plaintiffs do not accept that the first sentence of para. 87 is factually erroneous or that it emerged through inadvertence or oversight. The plaintiffs submit that the first sentence of para. 87 is a considered and accurate paraphrasing of findings made by the Tribunal—in particular, the following statement at para. 60.39 of Part II, Volume 2 of the Report:

    "[T]he Tribunal is satisfied that payments and other benefits, as set forth in Volume 1, were furnished by and on behalf of Mr. Denis O'Brien to Mr. Michael Lowry, and that these were demonstrably referable to the acts and conduct of Mr. Lowry in regard to the GSM process, that inured to the benefit of Mr. O'Brien's winning consortium, Esat Digifone, as recounted in Volume 2, in each instance within the Tribunal's Terms of Reference."

10.         The plaintiffs argue that, as it was entitled to do, the court paraphrased the Tribunal's conclusion expressed in para. 60.39 of the Report.

11.         Mr. O'Brien disputes this and states that the text at para. 87 is not expressed in terms which suggest that it is paraphrased, so the suggestion that the court would be entitled to paraphrase does not arise.

12.         To this, the plaintiffs reply that Mr. O'Brien's argument rests on the false premise that a court drafting a legal judgment must either quote from another source verbatim or expressly indicate that it is paraphrasing another source—even where that may be manifest and obvious from the content and context, as they state is the case here.

13.         The parties were afforded and availed of the opportunity to make short oral submissions today, 20^th February. In the course of argument,  counsel for Mr. O'Brien stated that although his application had invoked Order 28 rule 11, the court could equally amend para. 87 in accordance with its inherent jurisdiction. Counsel for the plaintiffs agreed with this. Both parties were also in agreement that the removal of the first sentence of para. 87 would not alter the overall meaning and effect of the principal judgement and would not have a bearing on the outcome of the motion. No further matters of substance arose on foot of the parties' oral submissions.

14.         I conclude from the foregoing exchange of correspondence and from the submissions that it is undisputed that the Tribunal did not make an express finding of corruption in relation to the award of the GSM licence; albeit that the plaintiffs contend that, in substance, the Tribunal did so find.

The applicable legal principles

15.         As the authors of Delany & McGrath on Civil Procedure , (5^th Ed., 2023) at para. 25.61 note, it has long been accepted that a judge has jurisdiction to revise or alter their decision at any time until it is perfected. That may involve the correction of an error, or the clarification of a finding in the judgment, or an amplification of the reasoning, which can be done without any difficulty.

16.         The authors go on to state that if the court is asked to reverse its conclusion or substantially change the judgment, strong reasons will have to be identified for doing this.

17.         However, in the present case, Mr. O'Brien does not ask this court to reverse its conclusion or substantially change the judgment as a result of the error which he identifies. Mr. O'Brien submits that if the first sentence of the paragraph is removed, the import of the paragraph would remain, and the paragraph would read coherently without it.

18.         As McDonald J. notes in HKR Middle East Architects Engineering LLC & Ors v. English (Judgment No. 3) [2021] IEHC 376:

"There are circumstances where an error on the part of the court can, quite properly, be drawn to the court's attention before any order is drawn up on foot of a judgment. This arises, most frequently, in the case of undisputed errors or in circumstances where, notwithstanding a dispute between the parties as to whether an error was made, the error is nonetheless obvious to the court."

Conclusion

19.         As stated above, I accept and indeed it is undisputed, that the Tribunal did not make a formal finding of corruption in relation to the award of the GSM licence.

20.         As such, I am satisfied that, a correction to this court's judgment may be made pursuant to this court's inherent jurisdiction.

21.         As to the precise wording of the correction, Mr. O'Brien submits that if the first sentence of para. 87 is removed, it does not need to be replaced by any other text since the import of the paragraph would remain and the paragraph would read coherently without it.

22.         I disagree. The first sentence of para. 87 ought not to be deleted in full. Para. 87 refers to the Tribunal's findings, which whilst legally sterile, provide context. The point being made at para. 87 is that the Tribunal made findings which, if well founded, are of significant public interest. The principal judgment is careful to explain that those findings are not admissible. Nevertheless, the fact that the Tribunal had addressed matters of significant public interest is germane to the balancing test to be carried out in relation to discovery and production/inspection. I did not feel it necessary, for the purpose of the principal judgment, to recite the Tribunal's findings in detail. The intention of the first sentence of para. 87 was to encapsulate the gravity of the matters investigated and the findings made.

23.         Rather than deleting the first sentence of para. 87, Mr. O'Brien's concerns can be met by including the detailed summary of the Tribunal's findings provided by the Supreme Court in Comcast International Holdings Incorporated v. Minister for Public Enterprise & Ors [2012] IESC 50 at para. 5 ("Comcast"). I will therefore substitute for the first sentence in para. 87, the summary of the Tribunal's findings set out by McKechnie J. in Comcast.

24.         Accordingly, I direct that the principal judgment be amended as follows:

1)      The first sentence of para. 87 to be deleted

2)      The first sentence of para. 87 to be replaced by the following text:

   "The Tribunal has carried out its inquiry and, as summarised by McKechnie J. in Comcast International Holdings Incorporated v. Minister for Public Enterprise & Ors [2012] IESC 50 at para. 5., it has concluded 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...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."

25.         I will direct that the principal judgment as delivered and approved should be taken down from the Courts' website and replaced as corrected. This corrected judgment will be approved by the court as the version corrected by the court.