Carlow Kilkenny Radio Ltd v Broadcasting Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 31 July 2003
• Neutral Citation: [2003] IESC 200
• Date: 31 July 2003
• Court: Supreme Court
• Docket Number: [S.C.

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

[2003] IESC 200

Murray J.

Geoghegan J.

Fennelly J.

142/03

THE SUPREME COURT

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

the applicants were disappointed applicants for radio broadcasting licences in two areas. They subsequently brought applications for judicial review of the respondent's decisions to award the licences to another party on the grounds that those decisions were irrational. The applicants, by way of motion for discovery, then sought various documents from the respondent in relation to its decisions not to award the licences to them. That application was refused by the High Court on the grounds that there was no dispute on facts between the parties which needed to rely on discovered documents for resolution. From that order, the applicant appealed to the Supreme Court.

Held by the Court in dismissing the appeal that the mere making of an unsubstantiated allegation would not entitle a party to discovery particularly in a judicial review application where the merits are not an issue. There was nothing to indicate either the giving of false information or the improper withholding of information by the respondent which might justify discovery nor was there any relevant conflict of fact on the affidavits needing resolution which would justify it.

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

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 detail with all matters relating to the applications for the two new licences in paragraphs 5 to 23 inclusive of the affidavit. The respondent does not take issue with any of those facts.

The notice of appeal sets out four grounds of appeal. They are:-

2 2 "1. The learned High Court judge erred in law and in fact or, alternatively, on a mixed question of law and fact in holding that discovery of the said categories of documents was not relevant or necessary or appropriate in judicial review proceedings.

2 2. The learned High Court judge erred in law and in fact or, alternatively, on a mixed question of law and fact in holding that discovery should not be ordered in a judicial review matter where the irrationality and/or unreasonableness of the respondent's decisions was the substantive issue in the proceedings.

3 3. The learned High Court judge erred in law and in fact or, alternatively on a mixed question of law and fact or, alternatively, misdirected himself in relying on the decision of Mr. Justice Carswell in In re Glor na nGael's Application [1991] N.I. 117 a decision which case was not applicable to Irish jurisprudence.

4 4. The learned High Court judge erred in law and in fact or, alternatively, on a mixed question of law and fact or, alternatively, misdirected himself in holding that the definition of irrationality is similar in this jurisdiction compared to that in Northern Ireland."

The operative part of the judgment of Kearns J. in the High Court given ex tempore on the 25 ^th of March, 2003 reads as follows:

"In the present case the respondent has set out a 'Feedback Report'setting out the reasons for the respondent's decision.

In this context I would approve the decision of Mr. Justice Carswell inln re Glor na nGael's Application [1991] N.I. 117. There is nothing before the court which indicates that the evidence put before the court was inaccurate or false; nor is there any allegation of a procedural irregularity and the applicant's primary argument is irrationality which requires a very high threshold as the Supreme Court indicated in...