Persona and Sigma Wireless should reveal details of a deal with a third party to fund their case against the State and Denis O'Brien, the High Court heard yesterday.
The case relates to the awarding of the second mobile licence to the businessman’s Esat consortium in 1996.
Persona and Sigma were runners-up in the competition for the licence and are seeking damages on the basis of a claim that the process was unfairly conducted.
They said last month that a UK company, Harbour Litigation Funding, is prepared to pay for their case in return for a share of any proceeds. Lawyers for the State and Mr O'Brien want to see that agreement, but the plaintiffs say that it is privileged and confidential.
However, Conleth Bradley SC, for the State, told the High Court that Irish law only permits third-party funding of a court case where there is some form of connection between the litigant and whoever is putting up the money.
Professional third-party funding is not permitted, he said.
Self -select
The lawyer argued that his side should be allowed see the agreement between Harbour Litigation Funding and the plaintiffs.
Mr Bradley said that Persona and Sigma were effectively trying to "self-select" which documents relating to the agreement with Harbour Litigation Funding they should put before the court.
“They say that not only can they self-select but they can have a bilateral dialogue with the court to the exclusion of the State,” he argued.
Michael Collins SC, for Persona and Sigma, however, argued that third-party funding arrangements fell under litigation privilege, which protected confidential communications.
Mr Collins also contended the matter stood outside "the substantive dispute" between the parties, namely the awarding of the State's second mobile phone licence.
Third party
He claimed his clients’ financial arrangement with Harbour Litigation Funding was consistent with laws governing maintenance and champerty [an agreement between the plaintiff and a third party], which aim to preclude vexatious litigation funded by disinterested third parties.
The arrangement, he said, was consistent with the rules governing the practice in Britain, where such arrangements were more commonplace.
However, Jim O’Callaghan SC, who is representing Mr O’Brien, maintained the practice in Britain had no bearing on the Irish courts, and that his party could not attest as to whether the arrangement complied with the rules if they could not assess it.
“The moving party in this application, the plaintiff, has asked this court to give its blessing to a document which it has said, no one else can see,” he said.
Judge Donnelly said she had heard substantial legal arguments from both sides and reserved judgment.
