Denis O'Brien must reveal material he claims is confidential

High Court reporters

Businessman Denis O'Brien has been ordered by the High Court to discover certain documents used in the Payments to Politicians Tribunal which he says provided the material to him in confidence.

Mr O'Brien, along with the State, is being sued by the Persona/Sigma consortium, one of the unsuccessful bidders for the country's second mobile phone licence, which was ultimately awarded to the businessman's Esat Digifone consortium.

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

The awarding of the contract became the subject of the Payments to Politicians (Moriarty) Tribunal. It found that "payments and other benefits, … were furnished by and on behalf of Mr Denis O’Brien to Mr Michael Lowry" which were demonstrably referable to the acts and conduct of Mr Lowry in regard to the award process and that "inured to the benefit of Mr O’Brien’s winning consortium, Esat Digifone.”

Persona/Sigma brought High Court proceedings claiming the tender process was allegedly corrupted by Mr Lowry, who allegedly abused his public office and accepted payments and/or benefits from or on behalf of Mr O’Brien or Esat. They said that were it not for this, they would have won the tender competition.

Mr O'Brien, the State and Mr Lowry deny the claims.

The case was initiated in 2001 but has gone through a number of challenges, legal issues and discovery, with the most recent being over an order requiring Mr O'Brien's to discover documents which he said were given to him in confidence by the tribunal.

Around 1,200 documents were in dispute including minutes of meetings, memoranda, letters and other documents either authored by, or furnished to, officials of government departments, primarily the Department of Transport, Energy and Communications but also the Department of Foreign Affairs and the Department of Finance. Others were written by or received by government ministers, officials, the AG and Department of An Taoiseach.

In May 2023, the High Court ordered Mr O'Brien to make certain discovery but Persona/Sigma were not happy with what he produced and made an application to the court for further and better discovery.

In a judgment on Monday on discovery, Ms Justice Emily Egan said no compelling argument had 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.

Here, the vast majority of the documents in dispute over which confidentiality is asserted, are decades old, she said.

The Tribunal had carried out its inquiry and concluded "that there was corruption at the highest level of Irish politics" which impacted on the award of the mobile phone licence, she said.

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.

It was reasonable to conclude that the Tribunal considered the documents in dispute to be what it said was “highly relevant to the very matters that it was investigating”.

She said it may well be, for example, that Mr O’Brien believes that the Tribunal’s interpretation of the documents, or the importance given to them, was flawed and that the court ought to take an entirely different view of such material.

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.

She 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 istration of justice in their production and inspection.

She ordered Mr O’Brien furnish a supplemental affidavit of discovery of the documents in dispute and further order that they be produced for inspection.