High Court grants State's consent for concurrent trial of three sets of proceedings regarding 1995 GSM license corruption claims.

THE HIGH COURT

[2026] IEHC 472

Record No. 2001/9223P

PERSONA DIGITAL TELEPHONY LIMITED AND ROCKABILL WIRELESS LIMITED

PLAINTIFFS

AND

MINISTER FOR PUBLIC ENTERPRISE, IRELAND, THE ATTORNEY GENERAL AND

DENIS O’BRIEN

DEFENDANTS

AND

MICHAEL LOWRY

THIRD PARTY

THE HIGH COURT

Record No. 2001/9288 P

DECLAN GANLEY AND ACEGRIND LIMITED

PLAINTIFFS

AND

MINISTER FOR PUBLIC ENTERPRISE, MICHAEL LOWRY, DENIS O’BRIEN AND THE

ATTORNEY GENERAL

DEFENDANTS

THE HIGH COURT

Record No. 2001/15119 P

DECLAN GANLEY AND ACEGRIND LIMITED

PLAINTIFFS

AND

MINISTER FOR PUBLIC ENTERPRISE, MICHAEL LOWRY, DENIS O’BRIEN AND THE

ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Ms. Justice Emily Egan delivered on the 19 day of June, 2026

1. This is my fourth judgment in the case management of these three sets of proceedings. The litigation concerns the 1995 competition for the State’s second GSM mobile telephone license. The plaintiffs (“Persona” and “the Ganley plaintiffs”, respectively), disappointed tenderers in that competition, claim to have suffered damage as a result of alleged wrongful acts of corrupt interference in the running of the licence competition.

2. In my most recent ruling ([2025] IEHC 767), I laid out a detailed timetable directing the parties towards trial of these proceedings. Trial is now scheduled to commence in Hilary or Whit 2027.

3. This judgment concerns two applications. The first is that of the first, second and third defendants (“the State”) that the three sets of proceedings are tried concurrently before the same judge, who would hear common evidence where appropriate and make such separate findings and orders in each case as may be required. This application for trial in tandem is on consent of all parties.

4. The second application is that of the State for modular trial of these proceedings with a broad split between issues of liability on the one hand and quantum on the other. This application for modular trial is supported by Denis O’Brien, Michael Lowry and the Ganley plaintiffs, but is contested by Persona.

5. For reasons which I will now proceed to outline, I have decided to accede to both applications.

Trial in tandem

6. No parties are objecting to the proceedings being heard in tandem, albeit that Persona reserves the right (in so far as necessary), to apply to have any order of this court directing concurrent trial varied if it appears that this will cause excessive delay in the progression of its proceedings.

7. The court has inherent jurisdiction to direct that related proceedings are heard together to promote the just, expedient and economical determination of the real issues in dispute. This is an aspect of the court’s inherent jurisdiction to control its own process so as to prevent inconsistent findings, avoid duplication and conserve resources.

8. The leading modern authorities on the circumstances in which it is appropriate to order concurrent trial of related proceedings are Kalix v. HSBC Institutional Trust Services (Ireland) Limited [2010] 2 IR 581 and Avoncore Limited & Ors v. Leeson Motors Limited & Ors [2021] IEHC 163.

9. McDonald J. summarised the principles which emerge from Kalix in his decision in Avoncore. He stated, inter alia, as follows (para. 29):

“(c) In ordering its business, the court has a discretion to ensure that scarce court resources and the resources of parties to litigation are not inappropriately wasted by an unnecessary duplication of litigation. In addition, it is important that measures are taken to minimise the risk of any inconsistent determinations arising from different proceedings. For the latter reason, cases can be linked with a view to ensuring that a particular series of cases (which share common factors) are assigned to a single judge who will determine all relevant issues across the range of cases concerned;

(d) As part of its power to manage the conduct of a series of cases in which there is either a significant factual or legal overlap, the court should aim to bring about a just and expeditious trial while, at the same time, seeking to minimise costs and to ensure that scarce court resources are not wasted;

(f) There is no reason, in principle, why a number of cases could not come to trial at the same time…”

10. This summary of the applicable principles has recently been endorsed and applied in Noble v. Greenstar Properties Ltd [2024] IEHC 657 (Dignam J.) and Ryanair DAC v. Competition and Consumer Protection Commission [2025] IEHC 536 (Barrett J.).

11. I agree with the State that the following four factors, in particular, mean that it is appropriate to order trial in tandem of these proceedings.

a) Time, resources and costs

12. Both the Persona and Ganley proceedings arise out of the same competition for the GSM mobile phone licence in 1995. Both traverse an identical factual matrix. Insofar as concerns the defendants and Mr. Lowry, both cases will involve the same factual and expert witnesses, common documents, and shared legal teams. The State alone anticipates that the evidence of its witnesses of fact on liability will take not less than 12 weeks of hearing.

Trial in tandem would eliminate duplication of this direct evidence and minimise repetition of the cross-examination of the State’s witnesses, of Mr. O’Brien, and insofar as relevant, Mr. Lowry. This is an important consideration because many of the State’s witnesses are of advanced age and much of the evidence concerns events occurring more than 30 years before trial.

13. A single hearing of common evidence will therefore promote efficiency and fairness and reduce costs while preserving the parties’ procedural entitlements.

b) Avoiding inconsistency

14. The liability evidence as to historical events and decision-making, the contemporaneous documentation and the related expert evidence will likely be substantially the same in both sets of proceedings. It is, in principle, undesirable for two separate trials to resolve a single body of common evidence and a single body of legal issues.

15. Hearing the proceedings in tandem will avoid inconsistent findings on central factual questions and preserve coherence between any decisions or orders made. Naturally, even when proceedings are heard together, the court can make separate findings in respect of each of the proceedings.

c) No prejudice

16. As indicated, the Ganley plaintiffs support the application for in tandem hearing. Any residual concerns on the part of Persona in relation to delay can be addressed appropriately through agreement or further court orders if necessary.

d) Public interest

17. The public interest in the efficient administration of justice is clearly advanced by in tandem hearing. A single hearing will minimise demands on scarce court time, reduce duplication of judicial effort and avoid the defendants and Mr. Lowry incurring the costs and legal complexities inherent in running two lengthy trials covering roughly the same ground.

18. I am fully satisfied that the public interest lies in favour of a single hearing, with prescribed modalities of trial to be agreed or prescribed by the court as appropriate.

Decision on Trial in Tandem

19. In summary, there is virtually complete overlap in the factual background to these sets of proceedings. This, together with the similarity in the claims brought by the respective plaintiffs, the number of witnesses who will be required to give evidence, and the anticipated length of the hearings means that these cases are particularly well suited to hearing in tandem. Trial in tandem will result in real and significant savings in court time and resources and in obvious costs saving for the parties, and I so order.

20. Directions will, in due course, be required as to the sequencing of issues, the order of witnesses, sequencing of direct and cross examination, the division of time and the exchange of documents across the different cases (to name but a few such issues). The State has prepared a draft protocol on these matters. Whilst this remains to be refined and agreed, it provides a helpful roadmap to the trial modalities that will need to be agreed, or in due course formalised by way of further directions or orders.

Modular Trial

21. The State’s application for modular trial is supported by Mr. O’Brien and Mr. Lowry. It is also supported by the Ganley plaintiffs. Persona objects to modular trial.

Legal Principles

22. The parties agree that the starting point is the decision of Clarke J. (as he then was) in Cork Plastics (Manufacturing) & Ors v. Ineos Compound UK Limited & Ors [2008] IEHC 93.

Clarke J. noted that the default position is that there should be a single trial of all issues at the same time and pointed out that in straightforward litigation, proceedings are likely to be longer and more costly if held on a modularised basis than as a single trial.

23. Clarke J. then considered when it might be appropriate to depart from the default position and set out the factors to be considered in deciding whether or not to direct a modular trial.

These factors have been summarised by Delany and McGrath (5th Ed, 2023) 14-59 as follows:

i. “the complexity and length of the likely trial - lengthy trials where determination of quantum and liability would take some time had the potential to lend themselves to modular trials;

ii. the need in some cases to insulate a party, who is involved with only some of a wide range of issues, from the expense and time of having to attend a lengthy trial, much of which would be of no relevance to the issues which involved that party;

iii. where there was a range of approaches to the calculation of damages depending on the basis upon which liability may be established;

iv. the likely relative length and complexity of the respective modules;

v. the extent to which there would be an overlap in the evidence or witnesses that would be relevant to the modules;

vi. whether there was a real risk that the modular trial of issues could give rise to prejudice."

24. In addition to the above factors, Clarke J. also considered how the court might manage the possibility of an appeal being taken at the conclusion of the first module.

25. Charleton J. in McCann v. Desmond [2010] 4 IR 554 (at 558) stated the test for modular trial in the following terms:

i. Are the issues to be tried by way of a preliminary module, readily capable of determination in isolation from the other issues in dispute between the parties?

A modular order should not be made if the case could be characterised as an organic whole, the taking out from which of a series of issues would tear the fabric of what the parties need to litigate so that the case of either of the plaintiff or the defendant would be damaged through being seen in the isolated context of a hearing on a number of limited issues.

ii. Has a clear saving in the time of the court and the costs that the parties might have to bear been identified? The court should not readily embark on a modular hearing, simply because of a contention that a saving in time and costs has been identified, but rather it should view that factor in the context of the need to administer justice in the entire circumstances of the case.

iii. Would a modular order result in any prejudice to the parties? If, for instance, the issue as to what damage was occasioned by reason of the wrong alleged by the plaintiff was so intricately woven in to the proofs that were necessary to the proof of liability for the wrong, so that the removal of the issue of damages would undermine the strength of the plaintiff's cases, or the response which a defendant might make to it, then the order should not be made.

iv. Is a motion a device to suit the moving party or does it genuinely assist the litigation by being of help to the resolution of the issues? .... If the removal of issues into a modular hearing is likely to disadvantage the proper process of pre-trial preparation that discovery orders, notices for particulars and notices to admit facts, involve, then such a motion should be refused as resulting not from a genuine process that will assist the trial but for tactical reasons relating to wrong footing the other party."

26. In Donatex Ltd v. Dublin Docklands Development Authority [2011] IEHC 538, Clarke J. referred to Cork Plastics and the decision of Charleton J. in McCann v. Desmond and summarised the test into two broad considerations:

"(a) whether there is a logical division of the case into modules as a result of which it is realistic to hope that so dividing the case will truly save time and costs;and

(b) whether there might be any true prejudice to any of the parties (as opposed to mere tactical disadvantage) as a result of the proposed division"

27. Consolidating the factors discussed by both Clarke J. and Charleton J., it appears that the primary considerations for the court in such an application are:

a. Are the issues to be tried by way of a preliminary module readily capable of determination in isolation from the other issues in dispute between the parties;

b. Is there likely to be an overlap in the evidence or witnesses that would be relevant to the different modules;

c. Will the determination of liability and quantum take some time such that the complexity and length of the likely trial lends itself to modular trial?;

d. Does the likely relative length and complexity of the respective modules lend itself to modular trial?;

e. Has a clear saving in the time of the court and the costs of the parties been identified?

f. Is it desirable to insulate a particular party or parties, who are (or who may be) involved with only some of a wide range of issues, from the expense and time of having to attend lengthy hearings which would be, or may be, of no relevance to the issues in which that party is involved;

g. Is this a case in which there is a range of approaches to the calculation of damages depending on the basis upon which liability may be established;

h. Is there a real risk that the modular trial of issues could give rise to true prejudice (as opposed to mere tactical disadvantage) to the opposing party;

i. Is the motion seeking modular trial a device to suit the moving party or to wrong-foot the opposing party;

j. Will the removal of issues into a modular hearing disadvantage the proper process of pre-trial preparation as regards matters such as discovery, notices for particulars and notices to admit facts;

k. How the court might manage the possibility of an appeal being taken at the conclusion of the first module.

28. There is dispute between the parties as to how a number of these criteria apply to the present application. In particular, there is some dispute as to whether the issues logically divide into modules (factor (a)) and as to whether a clear saving in the time of the court and the costs that the parties would incur have been identified (factor (e)). In addition, there is also dispute at a level of principle as to factors (c), (d) and (g). Thus, whilst it appears to be common case that all these factors go to the exercise of the court’s discretion, Persona is nonetheless inclined to treat each as a prerequisite to modular trial and moreover, to adopt a restrictive approach to factors (c) and (d) - concerning the length and complexity of the likely trial and factor (g) which considers whether there is a range of approaches to the calculation of damages depending on the basis upon which liability may be established.

29. To this extent, the present application for modular trial therefore raises two questions of general principle.

• First, as regards factors (c) and (d): in assessing an application for modular trial splitting liability and quantum, should the court focus primarily on the relative or comparative durations and costs of respective modules? If so, should the court incline against modular trial where the duration and costs of the liability module are likely to be significant in themselves, particularly when compared to those of a shorter quantum module (which might potentially be avoided if liability is determined against the plaintiffs)? Alternatively, may the court place weight on the duration and costs of the trial as a whole and on the absolute (rather than the relative) duration and costs of the quantum module which might potentially be avoided?

• Second, factor (g) requires the court to consider whether there is a range of approaches to the calculation of damages depending on the basis upon which liability may be established. Is Persona correct in interpreting this as a requirement that modular trial should not generally be ordered unless the court is satisfied that findings made in the liability module are likely to shorten the trial of the quantum module and reduce the costs thereof (assuming that same is to proceed)?

30. I have determined that both the relative duration and costs of the separate modules and any potential abbreviation of the quantum module are important considerations. However, if otherwise appropriate, modular trial may be directed even if the liability module is likely to be far longer than any potential subsequent quantum module and even if findings on liability will not necessarily shorten the quantum module.

31. After this brief introduction, I will now consider sequentially each of the relevant factors identified above.

a. Do the issues logically divide into modules?

32. Charleton J. indicated that a modular order should not be made if the case could be characterised as an organic whole, such that extracting a series of issues would tear the fabric of the litigation. If so, examining issues in this isolated context could damage the case of one party or the other.

33. This consideration has resulted in the refusal of a number of applications for modular trial.

For example, in Weavering Macro Fixed Income Fund Ltd v. PNC Global Investment Servicing (Europe) Ltd [2012] 4 IR 681 (“Weavering”) the Supreme Court took the rare step of interfering with a High Court case management decision and set aside the direction for modular trial. The Supreme Court did not believe that the issues to be allocated to each proposed module were sufficiently clear and precise. In addition, concern arose where some, but not all, of the issues that might be relevant to liability were to be heard in the first module. In those circumstances, there would probably be significant links between the different liability issues arising in each module, such that it would be unfair or inefficient to separate them out.

34. Several more recent decisions in which it was sought to hive off some, but not all, liability issues on a modularised basis apply this aspect of Weavering.

35. One such example is Ryanair DAC v. Skyscanner Ltd [2022] IEHC 696. Ryanair alleged that Skyscanner Ltd and its affiliates were guilty of multiple breaches including unauthorized screen scraping, trademark infringement, and violation of competition laws. Ryanair applied for a modular trial in which certain issues of liability were to be split off from issues of competition law which would be heard and determined thereafter. The court was not persuaded that the issues arising at the different modules were sufficiently distinctive and declined to order modular trial. Quinn J. viewed the proposed first module as an overly simplistic description of what the “liability issues” really were. A determination of Module 1 against Ryanair would not render the proposed module 2 moot or unnecessary. He therefore concluded that the proposed modular trial would , as Charleton

J. put it, “[tear] the fabric from what the parties need to litigate”. The court also noted that modular trial risked prejudicing the interests of Skyscanner in unnecessarily protracting the proceedings, causing continuing business uncertainty.

36. Likewise, in Nolan v. Dildar [2020] IEHC 243, two of the defendants in multi-party litigation applied for modular trial on the basis that certain issues which concerned them would be dealt with in the first module and that all other issues would be dealt with in a separate module. Barniville J. (as he then was) observed that the complexity and length of the likely trial was a factor that cut both ways. The issues in the case may be of such complexity (and so interconnected) that it is not possible logically to divide the case into different modules without the risk of real prejudice to one or other of the parties. The challenge posed by the likely overlapping of evidence and witnesses between the different modules was compounded by real difficulty in defining the boundaries of the modules with the necessary precision. Modular trial, therefore, risked duplication of time and costs.

37. A similar approach was taken by Heslin J. in Bradley v. Birthistle [2021] IEHC 695, a nervous shock case. The defendant sought to hive off into a preliminary module the question of whether he complied with some of the Kelly v. Hennessy [1996] 1 ILRM 321 criteria and proposed that the liability of the defendant hospital would be addressed only if the plaintiffs succeeded on the preliminary question. Heslin J. declined to order modularisation as he found that the evidence relating to liability, causation and damages was strongly interlinked and overlapping. Thus, the preliminary issue was not capable of determination in isolation from other issues remaining in the case thereafter.

38. The four cases just referred to Weavering, Ryanair, Nolan and Bradley are all cases in which some, but not all liability issues were to be hived off into separate modules. One can readily appreciate why that might cause a difficulty. In such circumstances, modularisation whilst superficially attractive due to potential costs savings, can in fact result in uncertainty. All too often there is a real difficulty in defining the boundaries of the various modules precisely. However, as the State points out, this application does not seek to disperse liability issues over the two or more modules, but to determine liability fully at module 1.

39. Determining and apportioning liability in this case will involve the resolution of complex legal issues, such as preliminary and jurisdictional issues under the Statute of Limitations, locus standi, the role and liability of the State under the doctrine of vicarious liability and the standard of proof in a case such as this involving allegations of corruption. There is no suggestion that such legal issues will require to be revisited in the quantum module.

40. Of course, modular trial has also been refused in cases which do not seek to bifurcate the liability issue. For instance, modularisation has been refused where the question of the damage occasioned by the wrong alleged is intricately woven into the necessary proofs on the liability issue. In such cases, as Charleton J. points out, hiving off damages might ultimately undermine the strength of the plaintiff's case, or the response which a defendant might make thereto. In this vein, Persona submits that the State has not clarified whether loss of opportunity should be tried and determined at module 1 or at module 2. I agree that this was not made clear as the application was first framed. For reasons I now set out, I also agree that, if modular trial is ordered then loss of opportunity must be determined at module 1.

41. Thus, it is common case that in order for the plaintiffs to succeed on liability, it will be necessary for them to demonstrate not only that corruption occurred as alleged, but also that such wrongdoing as might be made out was causative of injury or damage to them.

This requires the plaintiffs to demonstrate that any such wrongdoing actually influenced the tender process and that they themselves have suffered damage because the proven corruption resulted in the licence not being awarded to them or diminished their opportunity of being awarded the licence. To this end, Persona’s case is that were it not for the corruption alleged they would have been awarded the licence. Loss of profits are claimed on that basis. In the alternative, Persona also advances a claim for loss of opportunity to have been awarded the licence, for the costs incurred in the promotion and presentation of their application and for an account of profits as against Mr. O'Brien for unjust enrichment. Somewhat similarly, the Ganley plaintiffs plead that they have suffered loss of opportunity to have been awarded the licence together with loss of profits, tender costs and other miscellaneous costs.

42. The essential question for me under consideration (a) is whether there is clear and logical distinction between the legal issues which it is sought to modularise. Although, as I say, this was initially unclear, the State’s position is now that causation, including loss of opportunity, should form part of any liability module. I am satisfied that, provided loss of opportunity is included at module 1, there is a clear and logical legal distinction between the issues of liability, causation and loss of opportunity which are to be determined at module 1 and the quantum issues to be determined thereafter (if appropriate).

I am satisfied that both liability and causation, including loss of chance, can be clearly, comprehensively and fairly accommodated in the liability module.

43. Modular trial has also been refused, even though the proceedings were complex and the trial was likely to be lengthy, where the court was not persuaded that a just and fair result could be achieved by a liability and quantum split. For example, in James Elliott Construction Ltd v. Lagan [2016] IEHC 599, Costello J. (as she then was) was satisfied that modularisation would deprive the defendant of the opportunity to fully test credibility and whether the plaintiff had come to court with clean hands in the context of the proceedings as a whole. Because the defendant would therefore be prejudiced in the presentation of their case, it would not be possible to conduct a fair trial on a modularised basis.

44. No such issue arises here. Persona does not maintain that the credibility of any of the defence witnesses in the liability module is likely to be influenced by the evidence or issues arising at the quantum module. Moreover, as discussed and for reasons more fully explored below, I am also satisfied that there is comparatively little overlap between the evidence and witnesses relevant to each separate module.

b. Is there likely overlap in evidence or witnesses?

45. Under this heading, I must consider whether there is likely to be any substantial overlap in the evidential matrix subtending the liability and quantum modules respectively.

46. I accept the moving parties’ submission that such overlap is likely to be reasonably insignificant.

47. The resolution of the liability module will turn on factual issues such as whether the plaintiffs have made out a case that Mr O'Brien and/or Esat caused payments to be made to Mr. Lowry in breach of the rules of the tender and that corruption is thereby made out. These issues of liability will, in the main, be determined by reference to the historic evidence of the parties’ witnesses pertaining to matters prior to the award of the licence.

48. Likewise, factual issues of causation and loss of chance will, in the main, be determined by reference to the historic evidence of the parties’ witnesses pertaining to matters prior to the award of the licence.

49. It is therefore likely that essentially the same factual witnesses will be involved in both establishing or defending the allegations of corruption as in establishing or defending the proposition that absent such corruption, the licence would have been awarded to the plaintiffs, or that the latter have suffered a loss of opportunity.

50. Persona does not appear to dispute this. It states that in support of its liability case, it will adduce evidence to prove that Mr. Lowry interfered in the tender process and that the purpose and effect of the interference was to ensure that Esat Digifone was the winner.

Persona will then rely on the same evidence to demonstrate that it would have won the competition but for Mr. Lowry’s wrongful interference.

51. Provided, therefore, both liability and causation/loss of chance are tried at module one, any overlap in the evidence between the liability and quantum modules can be largely avoided.

Bifurcation of the trial in this manner will not tear the fabric of what the parties need to litigate.

52. Quantum, on the other hand, will involve entirely separate issues. Both plaintiffs essentially advance their quantum case on the basis of a counterfactual that were it not for the corruption which they allege, they would have been awarded the license or would have had a greater chance of being awarded the license. If successful on liability (including loss of opportunity), both plaintiffs will then seek to calculate the profit forgone from the loss of the licence by various methodologies.

53. Aside from “sunken” tender costs, this is, by definition, a forward-looking exercise.

Persona states that five members of its consortium will give evidence in relation to liability and will probably need to be recalled to give evidence in relation to quantum. However, the key point is that the factual evidence impacting the liability and quantum modules will generally be distinct in time and in subject matter.

54. Likewise, whilst some of the same expert witnesses may well give evidence on both liability and quantum, the substance of the evidence that they will give on each issue will be completely different. In any event, I understand that Persona’s experts in respect of liability and quantum are different.

55. From Persona’s perspective, therefore, there does not appear to be substantial overlap in the substance of the factual or expert evidence as between the two modules. From the perspective of the State, there is likely to be a virtually complete separation, as the factual witnesses required to address issues of corruption and causation will not be relevant to the quantum module.

56. Having considered factors (a) and (b), I am satisfied that the legal framework and the factual and expert evidence for the determination of liability, causation and loss of chance will be distinct from those relevant to any quantum module. I am further satisfied that, given the number and complexity of the legal issues and of the factual and expert disputes which will fall for determination at both the liability/ causation and quantum modules, modularisation would assist in the identification and the resolution of these many issues and therefore be of benefit to the litigation as a whole.

57. I attach to this judgment a preliminary schedule of issues to be tried and determined at module 1 and module 2 respectively. This broadly reflects, but does not precisely replicate, a draft schedule agreed as between the parties seeking modularisation which was furnished to the court. I emphasise that this is not to be taken as a final schedule - not least because Persona has not yet commented in full upon it. However, I am satisfied that this schedule is sufficiently clear and detailed to provide guidance, in general terms, on the matters which fall into each module. I am confident that the parties will, in due course, be able to agree a final schedule of issues for module 1 and module 2 or, in default thereof, that same can be finally defined and determined by the court.

c. Does the complexity and length of the likely trial lend itself to modular trial? d. Does the relative length and complexity of the respective modules lend itself to modular trial?

58. On any analysis, this is a case in which the determination of liability will be complex, lengthy and costly. Bearing in mind the length of time that this matter was at hearing before the Moriarty tribunal, it would be optimistic in the extreme to assume that the liability module will be anything other than very protracted.

59. Whilst I have no doubt that it will be significantly shorter than the liability module, I am also satisfied that the quantum module will be complex, lengthy and costly. The Persona and Ganley plaintiffs both put forward several different alternative approaches to the valuation of their loss. The Persona plaintiffs advance an ex post fair market value assessment of the licence based upon the acquisition of Telenor by British Telecom. This produces a primary figure of €2.3 billion which, together with statutory interest, amounts to between €4 billion and €6.4 billion approximately. Persona also advances an ex post calculation based on the current GSM licence holder’s 2024 EBITDA which, with interest, is calculated at between €3.4 billion and €4.5 billion approximately. As a third alternative, Persona advances an ex-ante claim based on the 2025 market capitalisation of the parent company of the current licence holder which, together with interest amounts to between €3.4 billion to €4.5 billion approximately. Finally, Persona advances an alternative ex-ante calculation which, with interest produces totals ranging from €534 million to €691 million approximately. The Ganley plaintiffs also advance a number of alternative approaches to valuation.

60. What cannot be disputed is that these various different approaches to valuation raise complex legal, technical and financial issues upon which detailed factual and expert evidence will be required. By way of example only, insofar as several of the above quantum methodologies are based upon the calculation of the profits made by Esat, Mr. O'Brien has indicated that he intends to lead factual and expert evidence to dispute the factual assumptions supporting the calculation and the expert methodology employed.

61. A difference in legal principle arises here as between the moving parties and Persona. The moving parties place greater emphasis on the complexity and length of the overall trial than on the comparative or relative length and complexity of the respective modules. They argue that the complexity, duration and costs of the trial as a whole support modular trial.

62. Persona, on the other hand, relies upon the following passage from Clarke J.’s judgment in Cork Plastics, which he cited with approval in the Supreme Court in Weavering:

3.11 A further factor which will frequently need to be assessed is the likely relative length and complexity of the respective modules which might be proposed. Again taking the simple division between liability and quantum as an example, it would seem unlikely that any sufficient advantage could be found in a modular trial where the quantum issues arising in the event that liability were established would be straightforward and unlikely to occupy a very great deal of court time. On the other hand a case which involved only a very net issue on liability but was complex in relation quantum would, prima facie, be a particularly appropriate candidate for such a modular trial.

63. Persona therefore submits that the comparative or relative complexity and length of the respective modules is of key importance. Here, the liability module will, on any analysis, be significantly more lengthy and complex than the quantum module. Persona argues that, viewed in relative terms, the likely savings to be garnered by modular trial are therefore reasonably minimal. Accordingly, it is said, modular trial should be refused.

64. I think that Persona overstates the emphasis placed by Clarke J. on comparative complexity and length. Clarke J. did after all commence the entire discussion by stating that the complexity and length of the likely trial was the most obvious factor to be taken into account. He noted that lengthy cases, where both quantum and liability are themselves “significant matters", have the potential to lend themselves to modular trial.

65. I acknowledge that Clarke J. notes that as a proportion of the total costs of a lengthy trial, the risk of a “small portion” thereof being wasted because of an unnecessary trial of the quantum issue is less significant than it might otherwise be. However, he goes on to state:

“In truth it is likely that the length and complexity of subsequent modules (in the above example the quantum hearing) is the issue which is likely to weigh most heavily in the courts consideration of the basic advantage of the modular hearing. This is because what is saved by the modular hearing is the risk that an unnecessary quantum hearing will have to take place. If that later hearing would not be lengthy or complex, then the possibility that it might turn out be unnecessary would not weigh very heavily in the balance.”

66. This does not suggest that it is only if the relative length and complexity of the liability and quantum modules are somewhat evenly balanced that modularisation is appropriate. On the contrary, particular attention must be paid to the likely length and complexity of the subsequent quantum module.

67. In my view, neither the absolute complexity and length of the trial as a whole nor the relative complexity and length of the liability and quantum modules respectively are determinative in themselves. Modular trial may be directed even if the liability module is likely to be far longer than any potential subsequent quantum module. Whilst relative complexity and length are important considerations, so too is the absolute likely length of the quantum module that could potentially be avoided. The reality is that, given the likely overall length of this trial, even a relatively limited proportion thereof could easily amount to many weeks of court time. Unless there is a significant narrowing of the quantum issues, I would be very surprised if the quantum module concluded in less than six to eight weeks.

Any potential saving of this court time and resources, and of the associated high litigant costs, should not be lightly overlooked.

e. Is modular trial likely to result in a clear saving in court time and costs?

68. Persona submits that in assessing the present application, I should assume that it is just as possible that liability will be established as that the plaintiff will fail on liability. I agree. I must assume that each outcome has a 50% prospect of occurring. This inexorably means that, if the case is not modularised, there is a 50% prospect that a complex, lengthy and costly quantum hearing will transpire to have been unnecessary. In light of the likely length and complexity of the quantum module this is not an approach which I am prepared to endorse. Rather, I take the view that there is a potential for a clear saving in costs and time as result of the holding the modular trial.

69. In addition, whilst I accept that some additional costs may be occasioned as a result of the requirement that the parties re-brief certain experts or the need to call factual witnesses on two occasions rather than one, the overall savings garnered by way of modular trial will outweigh this. In light of the very many different grounds upon which both the Persona and the Ganley plaintiffs advance their quantum claims, I think it more likely than not that the need for certain witnesses to give evidence for a second time at the quantum module (if same arises) will be balanced out by the clarity and guidance which the judgment of the trial court in the liability module will provide. In any event, as the State defendants point out, there is no absolute right to give all one's evidence in the context of a single hearing. It is no breach of justice and fair procedures to modularise a trial such as this if this will overall benefit trial efficiency.

70. Persona also argues that it will be more difficult for the parties to even consider settlement if all issues of quantum are not properly and fully pleaded out and stress tested prior to the commencement of the liability trial. However, this potential disadvantage is to a large extent mitigated by the orders already made by the court to the effect that all quantum witnesses must exchange reports and expert statements in advance of the commencement of the liability module. This can inform settlement discussions if the parties are minded to so do.

71. Overall, therefore, it is realistic to hope that dividing the case will save time and costs.

f. Will the decision on liability shorten or simplify any quantum module?

72. In Cork Plastics, Clarke J. pointed out that a modular approach may, in appropriate cases, reduce the need for parties to present evidence in respect of quantum against “a whole range of theoretical possibilities.”

73. In this case, the parties favouring modular trial argue that there are a whole range of different legal bases upon which liability might be established which, in turn, may influence the manner in which quantum is calculated.

74. By way of example, the State argues that if it were established that wrongdoing had occurred but that this had not impacted upon the award of the tender, this would significantly impact the calculation of damages. For the sake of argument, I am prepared to accept that this might be so. Corruption which is non-causative might still give rise to an entitlement to recoupment of sunken tender costs. On the other hand, in the circumstances just described, one could reasonably anticipate that the quantum module would be quite circumscribed, thereby suggesting that any costs savings garnered by modular trial would in themselves be modest.

75. I am more attracted to Mr. O’Brien’s argument that in a unitary trial, quantum would have to be addressed based on a myriad of possible liability permutations as against multiple defendants. I agree that this would be an extremely time consuming exercise. If the plaintiffs do succeed on liability, modular trial would enable the quantum issues to be addressed on the basis of an established bed of factual findings. This is likely to reduce the overall length, complexity and costs of the quantum trial. In a vacuum, it is not possible to assess how significant such a reduction would be. However, as is clear from Cork Plastics the potential abridgment of the quantum module is only one of a number of factors to be considered. The court clearly has a discretion to direct modular trial even if it cannot be satisfied that findings on liability will bring about a particular quantified abridgement of the quantum module.

Insulation of one or more parties?

76. Again, this factor has resonance here. If both of the plaintiffs were unsuccessful against all of the parties then all of the defendants are insulated from the requirement to take part in the quantum module. Likewise, if any one defendant is found to not be liable to both plaintiffs then that defendant will be insulated from participation in the quantum module. Naturally, if any defendant is found to be liable to only one of the plaintiffs, they will still be required to participate in the quantum module and would not experience a particular costs saving by reason of defending only one quantum claim rather than two. Some modest cost savings, however, might be still made.

77. As the court must assume that the plaintiffs are just as likely to fail as to succeed, it is clearly desirable to facilitate the potential insulation of one or other of the defendants from the quantum module.

h. Is there a real risk that modular trial will give rise to true prejudice (as opposed to mere tactical disadvantage) to Persona?

78. It is clear from the authorities that the court must be satisfied that there is no “true prejudice"

arising from the making of an order for a modular trial. In the present case, no evidence of “true” prejudice has been provided.

79. Persona’s only argument on grounds of potential prejudice is that modularisation has the capacity to result in delay.

80. I accept that the necessity to have a separate trial on quantum after liability has been determined will necessarily cause some delay. However, these proceedings have already been very substantially delayed and much of this delay, it has to be said, results from the

decision of the plaintiffs to effectively await the conclusion of the Moriarty Tribunal. Since then there have been further delays by all parties. Now by dint of proactive case management and the cooperation of the parties, these proceedings have been progressed and will soon be ready for trial. Overall, the comparatively modest additional delay that will be occasioned by modular trial is insufficient to dislodge the other advantages of modular trial.

i. Is the motion seeking modular trial a device to suit the moving party or to wrong-foot the opposing party?

81. Although Persona’s written submissions suggest that this eleventh hour application for modularisation is intended to achieve a tactical benefit rather than elicit trial efficiencies for the parties and the court, there is no evidence that this is the case. I am not satisfied that the application for a modular trial is a device or strategy. Rather, I accept that there are bona fide reasons for the defendantsand indeed the Ganley plaintiffsto seek a modular trial. This modular trial application is advanced as a real and genuine effort to secure these trial efficiencies.

j. Will modular trial disrupt pre-trial preparation?

82. There is no reason to suppose that modular trial will disrupt pre-trial preparation. As a result of the recent efforts of the parties and the court, pre-trial preparation is already at an advanced stage. As the State points out, discovery has been completed. A detailed timetable to trial has been set and the proceedings will continue to be case managed up to the date of trial. In ongoing case management hearings, the court will of course be highly conscious to ensure that modularisation does not disrupt pre-trial preparation or delay or derail the hearing or the ultimate resolution of the proceedings.

k. How the court might manage the possibility of an appeal being taken at the

conclusion of the first module

83. In Cork Plastics, Clarke J. acknowledges that difficulties might arise in a modular trial by reason of a possible appeal on liability interrupting the flow of proceedings and delaying the ultimate resolution thereof. This is a particular concern of Persona as it contends that an appeal on liability would cause further unacceptable delay in these already protracted proceedings. Is this correct? If so, what steps could be taken to mitigate such delay?

84. I must assume that there is a 50% prospect of the plaintiffs either succeeding or failing on liability and causation in the High Court. If the latter were to occur modular trial is unlikely to cause delay. This is because, given the complexity of this case and the multiple different bases upon which quantum is advanced, it is likely that, even in a unitary trial, the High Court would only proceed to assess damages if the plaintiffs have succeeded on both liability and causation. Likewise, if the plaintiffs did not succeed on liability and causation in the High Court, but succeeded on appeal, the appellate court would be most unlikely to assess damages itself without the benefit of High Court findings on the multiple factual issues arising. Therefore, if the plaintiffs lose on liability but succeed on appeal, a referral back of any question of damages to the High Court is almost inevitable irrespective of whether the trial is modularised.

85. On the other hand, I accept that, if the plaintiffs succeed on liability and causation in the High Court, then (unless correctly managed), modularised hearing with the possibility of intermediate appeal could potentially give rise to significant delay.

86. However, as noted in Cork Plastics, a trial court can take appropriate measures to minimise any such disadvantage. If the plaintiff succeeds on liability then the court will, in any event, have to go on to consider quantum. In those circumstances, it is possible for the court to refrain from making any order in respect the liability issue, so that time for an appeal will only run from the conclusion of the quantum hearing. This reduces disruption and ensures that, in such circumstances, the quantum case can be brought to trial within a short time of the court delivering judgment on the liability module.

87. In the present proceedings, all parties are agreeable to this course of action. Thus, the defendants have agreed that, should the High Court determine liability and causation in favour of the plaintiffs, they will not seek to bring forward any appeal of this finding until after the quantum module has concluded facilitating a complete resolution of all of the issues in dispute at High Court level. Whilst I acknowledge that some residual delay is still inevitable by reason of the necessity to re-convene for a second module, modular trial on the above understanding is nonetheless a proportionate and fair manner in which to proceed.

88. A particular issue arises in respect of the Ganley plaintiffs against whom the State has raised a plea of lack of locus standi. It is necessary, therefore for the court to consider how matters could be managed should the High Court determine that a case of causative corruption has been made out but that the Ganley plaintiffs lack locus standi to advance this case. In such circumstances, it is undesirable that the quantum module in the Persona proceedings should be held up pending an appeal by the Ganley plaintiffs of a finding that they lack locus standi in the Ganley proceedings.

89. As a party contending for modularisation, the Ganley plaintiffs should in principle abide by the same rules as the other moving parties. If they are dissatisfied with the High Court ruling on locus standi at the conclusion of the liability module, then strictly speaking the Ganley plaintiffs should await the conclusion of the quantum module before appealing this finding.

In such circumstances, it would be a matter for the Ganley plaintiffs to decide whether to participate in the quantum module, which would otherwise proceed against them.

90. On the other hand, it may be that an early appeal of the Ganley plaintiff’s locus standi issue, which is a relatively net issue, could be facilitated by the appellate court. Were this to occur, the appellate court could pronounce upon locus standi in advance of the quantum hearing.

91. For the moment, I will go no further than to order that, in the circumstances outlined at para

88 above, the Ganley plaintiffs should defer any appeal in respect of the locus standi issue until the ultimate resolution of the proceedings (unless all of the parties in both sets of proceedings agree otherwise). It will then be for all of the parties in both sets of proceedings to agree, or in default for the High Court to determine (in light of the likely time required to appeal the locus standi issue and all other relevant matters), what role the Ganley plaintiffs should play in the quantum module.

92. I therefore order modular trial with liability/causation/loss of opportunity to be determined at module 1 and quantum at module 2.

Preliminary Schedule of Issues

Proposed Division of Issues as between module 1 (liability) and module 2 (quantum).

Module 1 liability

(a) preliminary and jurisdictional issues

1. Statute of Limitations.

2. Judicial Review and Order 84 RSC.

3. Locus standi and, potentially issues in relation to the funding of the Persona proceedings.

4. Failure to challenge government decision of 2 March 1995 approving the announcement of the competition and/or awarding the exclusive entitlement to negotiate to Esat Digifone on or about 25/26 October 1995 and/or decision to grant license on 16 May 1996.

(b) The existence of a contract and its terms

6. Whether a contract existed and, if so, when it was concluded and the parties thereto.

7. The express and implied terms of the contract.

(c) Wrongdoing: the substantive allegations

8. Evidential standard and standard of proof.

9. Alleged corrupt interference by Mr. Lowry.

10. Alleged errors in the process and departures from the evaluation model.

11. Whether such alleged errors in the process and departures from the evaluation model were corrupt and occurred for the purpose and effect of favouring the tenders submitted by

Esat.

12. Misfeasance in public office.

13. Breach of contract.

14. Breach of duty (including statutory duty).

15. Deceit, fraud and misrepresentation.

16. Conspiracy.

17. Breach of constitutional rights.

18. Breach of EU law.

19. Breach of legitimate expectations.

20. Alleged wrongful actions of Mr. O'Brien/Esat.

21. Negligence.

(d) The role and liability of the State

22. Vicarious liability and apportionment.

(e) Causation of damage

23. Whether damage was suffered as a result of any proven wrongdoing.

24. Whether any proven wrongdoing affected the outcome of the competition.

(f) Loss of chance

(i) the nature of a loss of chance claim under Irish law.

(ii) whether the plaintiffs must establish that they lost a real or substantial chance of winning the competition and if so whether same is established.

(iii) in so far as relevant, the assessment of the percentage chance that was supposedly lost.

(g) Ganley proceedings record number 2001/9288P

25. Deferral of deadline for receipt of tenders.

(h) The GSM bid process.

26. Insofar as they do not otherwise fall within the ambit of the above issues, any issues pertaining to the tendering process in respect of the second GSM licence, the relative strength of the bids submitted by the various consortia, the robustness of the bid process and the outcome of the competition.

Module 2 quantum

(a) heads of loss

27. The Persona plaintiffs’ heads of loss.

28. The Ganley plaintiffs' heads of loss.

(b) The alternative approaches to valuation in respect of each plaintiff

29. Ex post calculation (2001).

30. Ex post calculation (2025) -EBITDA-based.

31. Ex post calculation (2025) -market capitalisation.

32. Ex ante calculation.

(e) Specific issues arising on quantum.

33. The appropriate methodology for the assessment of damages.

34. Date of assessment of damages.

35. Contractual versus tortious measure of damages.

36. Remoteness.

37. Counterfactual scenarios.

38. Quantification of the loss of chance.

39. Unjust enrichment and account of profits.

40. Exemplary and aggravated damages.

41. Interest.

42. Special damages and tender costs.

43. Overlap and interaction between the two sets of plaintiffs' claims.

44. Extinguishment or Limitation of Damages.