Digifone was the winner of that competitive process. What ESAT Digifonewon, was not the right to the second GSM licence, but rather the exclusiveentitlement to negotiate with the Department for the grant of the licence.The second phase of the process involved negotiations between ESATDigifone and the Department which ultimately led to the grant of thelicence. This second phase commenced very shortly after theannouncement of 25
October, 1995, and concluded on 16
May, 1996,when the licence was issued.
It was during the second phase of the process that the opinion in questionwas sought after consultation between the Department and officials of theOffice of the Attorney General. Those consultations followed receipt of notification on 17
April, 1996, from William Fry Solicitors for ESATDigifone, concerning the composition of the ESAT Digifone consortium,and in particular informing the Department that a 20% institutionalshareholding provided for in the tender, would not be taken up by theinstitutions mentioned in the tender, namely, Allied Irish Bank, InvestmentBank of Ireland, Standard Life Ireland and Advent International plc, butwould be allocated to IIU Limited, a company beneficially owned by Mr Dermot Desmond together with a further 5% shareholding arising from thedilution of the holdings of Communicorp and Telenor. Following a meetingbetween officials of the Department and officials of the Office of theAttorney General on 24
April, 1996, the Department wrote to the AttorneyGeneral’s Office on 27
April 1996 in relation to a number of aspects of theprocess on which advice was being sought, and reiterated theDepartment’s requirement for a legal opinion on the re-structuring of theownership of ESAT Digifone and in particular:-“
The question of whether recent correspondence suggests any changein the identity of the beneficial owners of the company which could be