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Plaintiffs entitled to extensive discovery in challenge to public procurement decision
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High Court allows application for discovery, subject to minor variations, in claim concerning the public tender process for the award of the second GSM licence, on the grounds that: (a) the State defendants had not discharged the onus of establishing that the discovery sought was disproportionate or oppressive; (b) absent a motion to have the defence that the claims are statute-barred heard as a preliminary issue, it was a matter for the trial judge and the issue could not be taken into account in a ruling on discovery; (c) it was not established that the listing of any documents in an affidavit of discovery would breach any confidentiality obligation.
Application for discovery - underlying action arising out of tender process for second GSM licence in 1995 and 1996 - two-stage process - evaluation stage and tender award stage - claim that the process was compromised - at time that proceedings were contemplated, matter being investigated by the Moriarty Tribunal - State defendants had previously succeeded in application dismissing the proceedings for inordinate delay but appeal allowed unanimously by the Supreme Court - amendments made to pleadings in light of Moriarty Report - 22 categories of document sought as arising from the amended pleadings against first, second, fifth and sixth defendants - 24 categories sought against fourth defendant, who is counterclaiming for defamation - whether claim as now pleaded was confined to the evaluation phase and the cut-off date for discovery calculated accordingly - whether confidentiality protocol could be agreed for tender documents - whether tender documents so old that issue of commercial confidentiality did not arise - whether discovery sought was burdensome and disproportionate.
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