Carlow Kilkenny Radio Ltd v Broadcasting Commission

 
FREE EXCERPT

[2003] IESC 200

THE SUPREME COURT

Murray J.

Geoghegan J.

Fennelly J.

142/03
CARLOW/KILKENNY RADIO LTD & ORS v. BROADCASTING COMMISSION OF IRELAND
BETWEEN/
CARLOW/KILKENNY RADIO LIMITED AND KILDARE RADIO LIMITED AND CARLOW/KILDARE RADIO LIMITED
Applicants/Appellants

and

THE BROADCASTING COMMISSION OF IRELAND
Respondent/Respondent

Citations:

RADIO & TELEVISION ACT 1988 S6

BROADCASTING ACT 2001 S60

GLOR NA NGAEL, RE 1991 NI 117

MCGUIGAN, RE 1994 NI143

R V SECRETARY OF STATE EX PARTE ROONEY 1995 NI 398

SHORTT V DUBLIN CITY COUNCIL UNREP O CAOIMH 21.2.2003

R V SECRETARY OF STATE FOR HEALTH EX PARTE HACKNEY LONDON BOROUGH & ORS UNREP BINGHAM CA 24.7.1994

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Judicial review - Principles to be applied - Applicant's assertion that decision of respondent irrational - Whether discovery application "fishing expedition" - Whether order for discovery should be granted (143/2003 - Supreme Court - 31/7/2003)

Carlow Kilkenny Radio v Broadcasting Commission - [2003] 3 IR 528 - [2004] 1 ILRM 161

2

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

2

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

3

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

4

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

5

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/Kilkenny and/or Kildare.

6

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/Kilkenny and/or KiMare.

7

7. All documents which pertain to the assessment by the respondent of the third-named applicants 'previous track record.

8

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

9

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 CK Broadcasting Limited (trading as KCLR).

10

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/Kilkenny licence and also the Kildare licence.

11

11. All documents which pertain to the criteria, or to the weightings (if any) attached to such criteria, used by the respondent to evaluate all presentations."

It is trite law that judicial review is not concerned with the correctness of a decision but rather with the way that the decision is arrived at. It follows that the categories of documents which a court would consider were necessary to be discovered will be much more confined than if the litigation related to the merits of the case.

I will be reviewing the relevant law in somewhat more detail later in this judgment. It is sufficient at this stage to point out that it would appear to make little or no difference whether there are different legal principles-applicable to discovery in judicial review proceedings from discovery in ordinary plenary proceedings as seemed on one interpretation to be the view of Carswell J. (as he then was) in In re Glor na nGael's Application [1991] N.I. 117 and relied on by the learned High Court judge or whether the same principles of discovery apply in each case. It is difficult to conceive of circumstances in which a different result would be achieved.

But before returning to the applicable law, I think it important to set out some more factual background. The judicial review application itself is grounded on a statement of grounds dated the 20 th of January, 2003 verified by an affidavit of James Reddy of the same date. In the introductory paragraphs he explains that he is the executive chairman and director of Carlow/Kildare Radio Limited and that that company operated a local radio station known as "CKR" in the Carlow/Kildare area under licence from the respondent. The first licence was for seven years and lasted from 1989 to 1996. That licence was renewed until 2003. He claimed in paragraph 4 of the affidavit that the station was "highly successful" and that it had average daily listeners of approximately 55,000 during 2001. He then deals in some...

To continue reading

REQUEST YOUR TRIAL