In this exclusive interview, Tony Boyle talks about:

• Battling Denis O’Brien and the state over the results of the Moriarty Tribunal
• Why it went wrong for Boyle’s company Persona
• Giving back to the Dublin Community with the Chamber of Commerce
• Moving to Portugal with his family and receiving a phone call from Enterprise Ireland
• His latest business venture working with 5G in Dense Air
• Being accused of the 500-year-old feudal times crime of “champerty”
• The long wait to get a final result from the courts

Tony Boyle found himself on the losing end of the battle for the state’s second mobile phone licence. His company, Persona came second in the 1995 competition in which the state awarded Denis O’Brien’s Esat consortium the licence.

The fall-out has been lengthy and controversial. The final report of the Moriarty Tribunal found that Michael Lowry, the minister for communications, delivered the state’s second mobile phone licence for O’Brien. It said O’Brien later sought to confer a material benefit on Lowry. It found that O’Brien transferred £477,000 to various Lowry controlled accounts, arranged for a US$50,000 loan to Fine Gael (it was returned) and supported Lowry in obtaining a £420,000 bank loan. Moriarty found that the payments were “demonstrably referable to the acts and conduct” of Lowry while he was minister.

O’Brien, Lowry and others whose evidence was not accepted have all rejected the tribunal’s findings. However, O’Brien has chosen not to challenge the findings in court.

Boyle continues to seek justice for what he believes was a flawed process by the government when issuing the licence. Persona is claiming a minimum €500m in damages from Denis O’Brien and Ireland. The company alleges that, because of the “misfeasance in public office” of the communications minister Michael Lowry, Persona lost its chance to win the licence. The state is defending the case.

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Sam Smyth (SS): Today I’m joined by Tony Boyle a man who could be, he would say should be, the wealthiest man in Ireland. And he would have been if his company Persona had won the licence for the second mobile phone network in Ireland, twenty-three years ago. But the winner was Denis O’Brien’s Esat Digifone. Then the Moriarty Tribunal sat until 2011 and litigation continues in the courts. 

Tony Boyle, the government and Denis O’Brien have now joined together to challenge your claim that your company, Persona, was the winner. How can you win that? 

Tony Boyle (TB): Well Sam, first of all, I want to say that I never had any desire to be the richest man in Ireland. Did not and do not. What this is about is an effort on my part to get justice and a fair result for me, for my business partner Michael McGinley, for my family and for our staff and our partners who worked on this. So, this is not an effort to try to be the richest man in Ireland. 

SS: Although, you would have to say Tony that the man who won that licence became the richest man in Ireland in no small part through the winning of that licence. 

TB: Well I think the record stands for that, alright Sam. 

SS: Well, tell me how can you win this case that has been taken at the moment?

TB: First of all, it’s very difficult for any mere human, mere mortal, to fight not only the state but the richest man in Ireland. Then in particular, when the two of them are working together against you it is a very, very daunting circumstance. Truthfully, if we were not so convinced of the fact that we are right and absolutely right – this is not the ramblings of, as many people have called a poor loser, this is about a situation where a government-commissioned inquiry has found that this process was flawed.

That’s what it has found. So, that’s the situation, but is it easy? Certainly not. Because as I say, joining against the richest man and the state working together in harmony is a very, very difficult situation.

SS: Tell me, now, looking back on this, the Moriarty Tribunal found that Michael Lowry, who was a minister for communications then, that he delivered the licence and that Denis O’Brien conferred nearly €1 million in benefits to the minister Michael Lowry. Mr Justice Moriarty said that they were “demonstrably referable to the acts and conduct of minister Lowry”.

TB: Well that is certainly what the Moriarty Tribunal said. And interestingly, that tribunal record stands. Despite the fact that he is not a stranger to the courts on many matters. So the findings of the Moriarty Tribunal stand. Also, the government of the day and the current government accepted the findings of the Moriarty Tribunal. They did not in any way legally challenge them and therefore those findings stand today.

SS: Well I thought the government at the time said they welcomed the findings.

TB: I believe they did. Certainly, the Taoiseach Enda Kenny at the time and Minister Pat Rabbitte both said in the Dáil and Taoiseach Enda Kenny at the Glenties, I believe summer school, or MacGill, said that he fully accepted it in response to a question from Elaine Byrne at the time.

SS: Tell me if the government as you say accepted fully the findings of the Moriarty Tribunal why are they challenging you in the courts?

TB: Sam, it’s very difficult to say. I fail to see why. I made it clear at the time, I came out on RTÉ, two days after this was announced. I welcomed the findings of the tribunal. I said I would welcome the opportunity to work with the government of the day. So that was the position I took. I simply said at the time: “give me back the money I’ve spent”.

I didn’t look for any returns. Give me back the money I’ve spent and join with us to go and tackle this and put the record straight. That is clearly on record. It is it was on RTÉ at the time.

SS: Well there was a police investigation, I think, by the Criminal Assets Bureau?

TB: There have been many reports of investigations by the Criminal Assets Bureau. I am not sure but they certainly also don’t appear to have told the Chief’s State solicitor’s office, who as recently as two months ago joined with Mr O’Brien in the Court of Appeal fighting our application which we had won in the High Court to file a new statement of claim. 

“I can assure you that at the time Motorola took this very seriously. Net result Sam, today Motorola doesn’t have any people employed in Ireland. And you know, was it directly down to that?”

SS: Tell me why should you have won that? 

TB: Well look, in any competition Sam, there’s always a winner and a loser. We did not go into it expecting naturally to be the winner. We had done a lot of work. We had an excellent team. We had the ESB as our partners. They had 20 per cent of the company and they had a significant team who were out planning the network all around the country getting planning applications. We had Motorola who at the time were a very significant investor in this country. Had over 3,000 jobs.

We had Telia who are the Swedish telecom organisation which was one of the more advanced. And we had Sigma Wireless, my company, or Michael McGinley’s and my company, which was basically the leading company at the time in the mobile communications business.

So, we had a very strong team. We had a very strong response. But you know when we entered it, we all obviously accepted that we could – we enter and when you enter any competition you have to accept you can lose. And that was fine. What we cannot accept is when this government-commissioned… which clearly points out that there were major irregularities, that the minister of the day interfered in the process, that he delivered vital information to the winning participant and that indeed the rules of the competition were not followed.

And in the famous words of one civil servant, when asked by Judge Moriarty what happened to the original rules of the competition, he said they “withered away”.

Now you tell me how you can have a competition with rules and those rules wither away and get replaced with a new set of rules. And suddenly the party who was number four becomes number one and the party who was number one becomes number two.

SS: Well I presume the court will decide that themselves at some stage. At that time you were in Motorola. What happened at that time, Motorola had a very big interest in this country, as you said 3,500 jobs? 

TB: Yes. I can assure you that at the time Motorola took this very seriously. Net result Sam, today Motorola doesn’t have any people employed in Ireland. And you know, was it directly down to that? I’m not saying that, but any of these multinational decisions are made by individuals and humans. And if you tell a very proud Irish man sitting at the top of a company such as Motorola that they’re being a bad loser in their home country, that does not reflect in terms of his support on his commitment to continue supporting that country.

“The Moriarty findings are in the public domain, so that evidence now exists”

SS: I’m going to go back to the license and the process of the issuing of that license at that time. Tell me, there was a cap put on the fee. The usual thing is, when there’s a contract like this to be got, is that the people applying to win that contract had to put in some money, is that right? 

TB: Yeah. The process started, Sam, as an auction or effectively a joint auction and beauty contest. So it was, pick the best winner and also award points for the maximum amount they were willing to bid for the benefit of getting the license. We had a consortium at the time which had a group and had finance in place to bid up to €85 million. That’s what we were going to bid for the license. With a very short period of time. So with only two weeks to go to the return date for the license, the minister of the day stopped the process.

He said there had been interference or there had been an approach from the EU regarding this question of the auction fee. And subsequently he recommenced the process and he capped the license fee at €15 million. Subsequently, in the Dáil when asked by the opposition why had he capped it, he made reference to the fact of opening up the market for access to young entrepreneurial businesses. So effectively the Irish State and the Irish taxpayers got €15 million for that licence, or £15 million at the time I believe it was, when certainly our bid would have been well in excess of that. And I’m sure other people potentially also.

SS: Somebody said at the time that you were prepared to go to €85 million.

TB: We were prepared to do that. Yes, that’s what we had.

SS: And the State, who did that suit? Well of course, what it did do you know, it suited you from a very rich multinational American company. But I just wonder is reducing the cap like that, does Ireland do any better out of that?

TB: Well Ireland would have got €85 million for this licence. And remember this is 1995, in today’s money, that’s what – it’s hundreds of millions. So it was a very significant amount of money was left on the table and when the minister was asked in the Dáil “why did he do this, why did he cap it?” he said he did it to give access to a young entrepreneurial business. Put two and two together. 

SS: So he did it for one of the contenders for the… 

TB: No, it applied to everybody Sam. The maximum anybody could bid. But the point I’m saying here is that the Irish taxpayer could have got €85 million, at that point in time.

SS: Well then when it was won of course, the licence, I mean there was a lot of talk at the time I can remember, like so many watching the Late Late Show on TV and Denis O’Brien saying that he would never go offshore and so forth. Tell me he sold it three years later I think and moved out of the Irish tax jurisdiction at that time. 

TB: I believe the fee at the time was just over €2.2 billion, but that was for the Esat telecom and the Esat Digifone business. But most of the value was in the Esat Digifone, which was the mobile operation.

SS: Now. At the time a lot of people were very concerned about the Moriarty Tribunal that went on and on and then on again. It ended up costing €120 million.

TB: Well it was a very comprehensive tribunal. I think it’s very important to note that Judge Moriarty was an extremely credible and very well-respected judge. He put a huge amount of effort into this. There were over 368 or 370 days of public sworn inquiry. Apart from all of the balance of the investigation. So it was a very significant investigation. Obviously, because it was investigating matters which were of grave concern. 

SS: There were also a lot of challenges to the four judicial reviews right the way through during the Moriarty Tribunal weren’t there? 

TB: There were certainly many. And as I say, it was very interesting that at every turn in the Moriarty Tribunal, every turn there were questions there was a regular path to the High Court to question it. But interestingly, again I repeat when the final report was issued there was no route to the High Court from somebody who was not short of doing it on other matters.

SS: Were there any successful appeals to the courts from the Moriarty Tribunal?

TB: Not to my knowledge. I don’t recollect Sam. 

“It was very difficult to read that. But I’ve got to say I had great hope at that point in time that we would get justice.”

SS: Through this time, you were watching this tribunal going on and on. Tell me what was happening to your business through that time?

TB: Well obviously Sam, it was a major blow to our business, but we got on with things frankly. We just went and built our business. We didn’t cry over it. We just got on with it. So from 1996 through 2005, 2006 we built our business. It was tough but we got on with it. We had lost a lot of money so that was obviously a significant challenge for us, but we got on and we built our business and we were getting on with things.

Regrettably then when we saw what was appearing through the tribunal, we felt honour-bound, at that point in time, to challenge this matter. Up to then we had not.

SS: And then when, I think it was March 2011 when the final report came through. What did you think that day when you read it?

TB: Well truthfully, I was shocked to start. Okay, because I had always had my reservations but to actually read in black and white that the concerns we’d had from the start, the real fears that this had not been a fair process, that we had been basically hard done by. It was very difficult to read that. But I’ve got to say I had great hope at that point in time that we would get justice. So, I said this is the first road on the path to justice. And I believed. So, it was a mixture of shock and of hope on the day.

SS: Which of the findings in particular gave you hope?

TB: Well look, I think you described it at the start. I mean the main summary point was that Mr Lowry was bestowed financial benefit.

SS: He was the minister for communications who would award the license?

TB: Absolutely. So, the minister who awarded the license, that there was a proven money trail, that’s the documentation. So, it was very clear what the report was saying. And that clearly, obviously, that the actual result of that competition was fundamentally flawed. 

“We are anxious to get to court to get the opportunity to represent that evidence. To present the evidence. We absolutely will have to prove it.”

SS: Although it has no legal standing on its own, that finding, has it?

TB: Absolutely. The findings do not have any legal standing. That’s clear. What has been made very clear by the Supreme Court now on two occasions is that the evidence that was presented in that tribunal are, again in Judge Hardiman’s words, absolutely relevant. 

They are in the public domain, so that evidence now exists. Therefore, that is why we are anxious to get to court to get the opportunity to represent that evidence. To present the evidence. We absolutely will have to prove it.

SS: Although, if you represent that same evidence in another court, another court might come to a different finding or decision than Mr Justice Moriarty.

TB: And Sam, we believe in the law, we believe in the judiciary, we believe in justice. We will accept that position.

“The idea was we would take things easier and I might play a bit more golf. That didn’t work”

SS: Tell me through that time, you were as I say you were vice president of Motorola for 13 years, 29 years in Sigma. Tell me, you’re also president of the North Dublin Chamber of Commerce and chairman of the Ballymun Civic Alliance. You were busy. Seems to me like you were giving something back at that time?

TB: Well I always had a firm belief, and still do Sam, to give back to the society and to give back to the community. I was on Dublin Chamber, as you say Dublin Chamber of Commerce Executive Board, for over 20 years/ 25 years. I think I was the longest-serving member. I was president of North Dublin Chamber I was Board Director of Ballymun regeneration.

“I got a call from Enterprise Ireland to see if they if I could help them with a visit that was going on from Michael D Higgins.”

SS: You’re a Northside guy then I take it? 

TB: Well I was born in the inner city. And I’ve worked in Fingas all my life. So Finglas/Ballymun is an area that I’m very positive about and very supportive of and very proud to be involved with.

SS: And five in a row? 

TB: Well we won’t say anything about the next one.

SS: Well six in a row is what you’ll be looking at next. But tell me, there you were during that time you were doing your bit around the city. Somewhere along the way, you decided to move to Portugal. Why? 

TB: I felt, Sam, that was the stage in my life that I’d really wanted to try and take things a little bit easier. That was the plan, that was my theory. I went there with my wife and my son and the idea was we would take things easier and I might play a bit more golf. That didn’t work. In the first week I was there, I got a call from Enterprise Ireland to see if they if I could help them with a visit that was going on from Michael D Higgins.

Michael D was visiting Portugal in September of that year. I moved down in July. I think they obviously knew that I’d been working in the Chamber movement and the regeneration movement etc. for all my time in Dublin and they asked me what I help to get a business network going. The first thing I did was I organised the event for Michael D Higgins. Which was very successful, a very business event and he was an excellent speaker. 

From there, working with the ambassador at the time we developed a concept because the agencies don’t look at Portugal as a very important market. We created an activity called the Ireland Portugal Business Network. I was president or chairman of that for the first four years and now I’m honorary President. We get funding from the Department of Foreign Affairs, small funding but it’s been very significant and that’s been hugely beneficial in terms of trying to build the relationships. 

Obviously, that was voluntary and still is voluntary. Something I do just to support the Irish government. In the middle of that, I met with the telecom operators in Portugal and I got brought back in again. I suppose you know, got sucked into the real business and now I’m working for a 5G network in Portugal. I’m leading the activity so…

SS: It’s called Dense Air.

TB: Yes, it’s called Dense Air. 

SS: Tell me is that up and running?

TB: No, it’s early days. It’s early days. 5G really isn’t around for the next twelve months. So, we have a spectrum licence and I’m an employee. But it’s very enjoyable and very full-on. So that as well as my other activities in Ireland.

“I think it’s a very unfortunate case of the digital divide, which is a real problem”

SS: Tell me, do you think the 5G thing, are we ready to take up with it in Ireland?

TB: Look it’s early days and obviously the key thing that has to happen in 5G is the applications have got to be developed. But I’ve been there at the start. I’ve been there at the first generation. One of my first customers here was Eircell in Ireland. So when I worked with them for the first generation of radios, the old analogue TACS network. I then worked on GSM. I worked on the second GSM licence obviously here. I worked on 3G. I worked on 4G and 5G is the latest technology. Key things that it delivers are things like higher speeds, higher latency, so for many new types of applications, most of which have not yet been invented.

So this is an enabling technology which will facilitate major breakthroughs in terms of our lifestyle, but more importantly in terms of key things such as health for example. So, I think 5G will certainly be a key part of the future.

“No, no, no. It wouldn’t be up to me to comment on a process such as that.”

SS: So it seems. Tell me when you look back to Ireland from Portugal. What do you think of the broadband rollout that we have here in Ireland?

TB: I think it’s a very unfortunate case of the digital divide, which is a real problem. So, I’d certainly like to see that digital divide doesn’t continue. Now it is more difficult. It’s very much more financially difficult to solve it. But I would love to see this digital divide being addressed.

SS: Would you do it differently than the government is planning to do it at the moment?

TB: I certainly wouldn’t comment on that Sam. 

SS: Why, do you have a dog in the race?

TB: No, no, no. It wouldn’t be up to me to comment on a process such as that.

“We’ve had our tough times too – through the whole financial crisis but thankfully we’ve stayed alive”

SS: Yeah, well you know a thing or two about processes at this stage Tony. Tell me, now just thinking back to what you were saying. You’re a Dublin Northside guy Tony and also you really learned the benefit of education early in life didn’t you? I mean you went to do marketing at a time when marketing I suppose wasn’t as chic as it appears to be now with CVs and so on.

TB: Well my family was a wonderful family, working-class. My dad worked every hour God sends to put us through school. My mum got me a scholarship to O’Connell’s and she went and got it. And so I went to O’Connell’s, went through my leaving cert.

I broke her heart then because I didn’t take my job in the civil service which would have seen me being in one of the positions of being the mandarins. But I decided to go and join a company out in Finglas called Telecommunications which is when I entered the radio business at just 17 years of age. 

“We formed Sigma Wireless and so for almost 30 years now we’ve been building their radio networks for customers like the Garda.”

SS: It was a very flashy business then. It was very modern wasn’t it? 

TB: It was old fashioned, it was two-way radios, it was walkie talkies, taxis and things of that nature. 

SS: Like lorry drivers talking to each other?

TB: Absolutely. Absolutely. Vets and doctors. This was long before mobile phones were invented.

SS: Yeah but then you went on to do things with emergency services and so forth.

TB: Absolutely. That’s been all my life and I started the Motorola business in Ireland and built it from scratch and I went on to run the UK and then European business for Motorola and then in 1991, I formed my own company with Michael McGinley. We formed Sigma Wireless and so for almost 30 years now, we’ve been building their radio networks for customers like the Garda, like the ambulance services, the Irish coast guard, the Irish Aviation and then internationally for people like United Nations so we build the communications networks for the peacekeeping missions all over the world. Based out of Dublin.

SS: Is it a company that did well?  Made money?

TB: We’ve done well. But yeah, we’ve had our tough times too – through the whole financial crisis but thankfully we’ve stayed alive and we’ve continued to.. 

SS: And the company’s still trading? 

TB: Absolutely.

“I think under the current situation I have grave reservations and I feel let down by our government”

SS: Well that’s something. Just looking back now because we’re getting towards the end. Looking back now, I mean everything almost in your life now goes back to 1996 and the awarding of that second mobile phone licence. There were no criminal charges. No political repercussions. Is that going to change? 

TB: Well who knows Sam. Obviously as I said earlier, it’s very difficult for somebody, we’ve been relatively successful but we’re not rich, it’s very difficult for somebody of our stature to get justice.

To be able to fund this legal case so far, we have spent – over €10 million has been invested to date since we started on this process.

“It’s a standard practice in other countries all over the world. But here in Ireland it is actually there’s a feudal times law called ‘champerty’.”

SS:  In fees? 

TB:  That’s not in fees. No. In total we’ve invested well over €10 million, fees would be over €2 million, since this, since this case started. So, a lot of money. To bring it to conclusion could be a significant multiple of that. So, bearing that in mind we went, and we organised funding from a company called Harbour and they do litigation funding.

It’s a standard practice in other countries all over the world. But here in Ireland it is – actually there’s a feudal times law called ‘champerty.’ Which basically says that it is unlawful for another party to fund your legal case. It developed in the feudal times when apparently there was abuse by the Lord of the Manor in terms of legal cases but it is on our statute books. So that law exists. So when we organised the funding the advice was that we would go to the courts and seek their permission.

So, we advised the courts that we had funding in place. We had over €16 million of funding in place for the legal case but we sought the permission of the court. Mr O’Brien and the state objected at the time so they objected to ours, citing that feudal law. They obviously were very interested in supporting the 500-year-old law or else they were trying to really ensure that our case never saw the light of day and you know that the second point was the reason. So they basically they brought this matter up.

We subsequently lost that in the Supreme Court. So, the Supreme Court upheld the position. They said that champerty still existed. Having said that they had some very stern words to say. So, the Supreme Court said that the State were in an invidious position because they were on the one hand in a position where they had to defend their legal case but yet they were also saying that this 500-year-old law was the one they were bringing. This law had never been implemented in Ireland by the way.  So it’s one that was just found in the statute books. So, they further went on to say that the government needed to take action to change the laws of champerty. 

“Run us out of road, run us out of money. It is our determination to get justice here.”

SS: Well they’ve been in no rush to do that ever since. 

TB: No, they have not. They also said, by the way, that if the state didn’t do it that the judiciary would have to consider intervening. Interestingly, one of the current ministers, and she wasn’t the minister at the time and she was a solicitor, had actually said that she was supportive of tackling the question of champerty. Minister Madigan. She had said this. 

SS: Well she is in government now. So, was there a point then that rather than someone just funding you for litigation, if someone were to invest in your company and take a shareholding is that considered champerty?

TB: Well there was a very clear statement from the Master of the Court that that would not. That would be…

SS: From the Chief Justice?

TB: From the Chief Justice. That the purchase of equity in the business or the purchase of the business would not. So that’s the route we’ve taken in terms of making those plans. However, again we reached another milestone. So, remember, the first roadblock jointly from the State and Mr O’Brien together was to stop us on champerty. So, when faced with a new funding situation we raised a new statement of claim. Remember the original statement of claim was done when our case was merely against the State. One thing we didn’t cover is that Mr O’Brien elected to become a defendant in the case.

So, he went to court to say I want to be a defendant. Naturally, if you’re going to be a defendant then we have to say well what’s our claim against you? So, we raised a new statement of claim which was very comprehensive. It included Mr O’Brien, it had included the results. Not the results, but the evidence that had been had been delivered at the Moriarty Tribunal and we issued that new statement of claim.

Again the State and Mr O’Brien joined together to object to this. We won that one in the High Court. So the High Court basically said you have the right to issue your new statement of claim and they further said it would be bizarre if you were not able to raise the statement of claim against Mr O’Brien as he asked to be a defendant. They once again appealed this matter too and that has now been heard in the Court of Appeal. And I can’t make any further comment as we’re now awaiting an outcome from that Court of Appeal.

SS: After the court of appeal then whoever loses that may well go to the Supreme Court? 

TB: Look, the reality here, Sam, is that they think they can run us out of road, okay? 

SS: Run you out of road, run you out of money I would suggest. 

TB: Run us out of road, run us out of money. It is our determination to get justice here, that is clear. One of the most painful things in this whole period. So over 15 years or 20 years, we had many disappointments both personal and family etc., coming from this. But one of the most damaging things was to stand in the court and to listen to the state say that we were committing the crime of champerty. What we were trying to do was basically get the funding so we could get our justice. That’s all we were looking for.

“I can’t deny that I’m disillusioned with the position the government have taken.”

SS: So, looking at that and we’re coming now towards the end of our talk here Tony. You’re watching all this and commuting from Portugal to conduct this case. Would you consider coming back to Ireland to live?

TB: Look I have three daughters and grandchildren here whom I love and I’m very proud of and come to see all the time when I’m here Sam. I can’t deny that I’m disillusioned with the position the government have taken. Honestly, I think in particular, the minister, the current minister for communications for example, probably attended dozens or more than dozens of events which I participated over as president of the Chamber of Commerce giving my voluntary time, as chairman of Ballymun.

So you know, we’re not carpetbaggers. We’re just looking for justice so that’s a grave disappointment to us. I would further say that our current Taoiseach, when he was a backbencher  in 2008 or 2009, I can’t remember which year, I sat beside him at the Dublin Chamber dinner when I was again president of North Dublin Chamber and he had read that day the draft report of the Moriarty Tribunal and he was thoroughly shocked is the only word to describe it because it was shocking.

So that’s the situation. So in answer to your question, I think under the current situation I have grave reservations and I feel let down by our government.

SS: Tony Boyle. Thank you very much for joining me today. 

TB: Thank you, Sam.