Carlow Kilkenny Radio Ltd v Broadcasting Commission

 
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Supreme Court

[S.C. No. 142 of 2003]
Carlow Kilkenny Radio Ltd. v. Broadcasting Commission
Carlow Kilkenny Radio Ltd., Kildare Radio Ltd. and Carlow Kildare Radio Ltd.
Applicants
and
Broadcasting Commission of Ireland
Respondent

Cases mentioned in this report:-

Associated Provincial Picture Houses Ltd. v. Wednesbury Corp.ELRUNK [1948] 1 K.B. 223; [1947] 2 All E.R. 680.

Re Glor na Gael's ApplicationDNI [1991] N.I. 117.

Re McGuigan's ApplicationDNI [1994] N.I. 143.

O'Keeffe v. An Bord Plean√°laIRDLRM [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

Orange Ltd. v. Director of Telecoms (No. 2)IR [2000] 4 I.R. 159.

R. v. Secretary of State for Health, ex parte Hackney London Borough (Unreported, English Court of Appeal, 24th July, 1994).

Re Rooney's ApplicationDNI [1995] N.I. 398.

Shortt v. Dublin City CouncilIRDLRM [2003] 2 I.R. 69; [2004] 1 I.L.R.M. 81.

Practice - Discovery - Judicial review - Circumstances where discovery necessary in judicial review proceedings - Whether same principles of discovery apply to judicial review proceedings and ordinary plenary proceedings - Whether discovery necessary to show irrationality or procedural irregularity - What amounts to fishing exercise - Whether discovery necessary where clear factual dispute on affidavits.

Cur. adv. vult.

Murray J

31st July, 2003

I have read the judgment about to be delivered by Geoghegan J. and I agree with it.

Geoghegan J

This is an appeal from the order of the High Court (Kearns J.) made on the 25th March, 2003, refusing a motion for discovery in so far as it related to eleven of the thirteen categories of documents in respect of which discovery was sought. The appellants are the applicants in this judicial review proceeding in which they are seeking to quash two decisions of the respondent awarding sound broadcasting contracts on the FM Band in Counties Carlow and Kilkenny to C.K. Broadcasting Ltd. and in County Kildare to County Kildare FM Radio Ltd. respectively. The first applicant was a disappointed applicant for the County Carlow and Kilkenny contract and the second applicant was a disappointed applicant for the County Kildare contract. The third applicant allegedly has a controlling interest in, or at the very least has a strong connection with, the other two applicant companies and it formerly held the franchise for the Carlow and Kildare area, which no longer exists as a franchise unit. The important factual background to the judicial review application is that C.K. Broadcasting Ltd. and County Kildare FM Radio Ltd. did not previously have any franchise to broadcast in respect of the counties of Carlow, Kilkenny or Kildare. There is no right of appeal from the decision of the respondent and, therefore, the only way that its decisions can be challenged is by way of judicial review. That is what the applicants ultimately intend to attempt to do in this case. For that purpose they are seeking discovery of the categories of documents at paras. 1 to 11 of the motion heard before the High Court. These categories of documents, as set out in the notice of motion, are as follows:-

"1. All documents which pertain to the decisions made by the respondent on or about the 14th October, 2002, in relation to the awarding of the Carlow and Kilkenny radio franchise.

2. All documents which pertain to the decision made by the respondent on or about the 14th October, 2002, in relation to the awarding of the Kildare radio franchise.

3. All documents which pertain to the reasons why the respondent refused to award the licences for Carlow and Kilkenny and/or Kildare to the applicants.

4. All documents which pertain to the consideration given by the respondent to s. 6 of the Radio and Television Act 1988 and s. 60 of the Broadcasting Act 2001.

5. The minutes and records of all meetings held by either the executive or the members of the respondent and to all (or any) documents circulated at any such meeting, or to any reports generated by the executive of the respondent, arising out of the respondent's consideration of the awarded licences for Carlow and Kilkenny and/or Kildare.

6. The written submissions and confidential appendices of all applicants, the feedback reports in respect of all unsuccessful applicants, and any feedback reports furnished to the successful applicants in respect of the award of the licences for Carlow and Kilkenny and/or Kildare.

7. All documents which pertain to the assessment by the respondent of the third applicant's previous track record.

8. All documents which pertain to the issue of ownership and control of the applicant companies considered by the respondent.

9. All documents which pertain to the conflict of interest of Dr. Colm Kenny, one of the members of the respondent's board and also all documents which pertain to the respondent's knowledge of Dr. Kenny's commitment, professional involvement or commercial involvement in, or commercial links with, one of the shareholders of one of the participants in the consortium behind C.K. Broadcasting Ltd. (trading as KCLR).

10. All documents which pertain to the criteria, or to the weightings (if any) attached to such criteria, which the respondent used to assess all applications for the Carlow and Kilkenny licence and also the Kildare licence.

11...

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