Dome Telecom Ltd v Eircom Ltd
 IESC 59
THE SUPREME COURT
374 & 375/2006 - Geoghegan Fennelly Kearns - Supreme - 5/12/2007 - 2007 15 3078 2007 IESC 59
HALSBURY'S LAWS OF ENGLAND 4ED VOL 13 PARA 1 FOOTNOTE 3
DERBY v WELDON (NO 9) 1991 1 WLR 652
GRANT v SOUTH WESTERN & COUNTY PROPERTIES 1975 CH 185
KEANE & NAUGHTON v BORD PLEANALA & COMMISSIONERS OF IRISH LIGHTS 1995/19/4816
RYANAIR PLC v AER RIANTA CPT 2003/46/11374
TREATY OF ROME ART 81
TREATY OF ROME ART 82
COMPETITION ACT 1991 S4
COMPETITION ACT 1991 S5
FRAMUS LTD & ORS v CRH PLC & ORS 2004/18/4116
POSTAL & TELECOMMUNICATIONS ACT 1983 S111(2)
EUROPEAN COMMUNITIES (INTERCONNECTION IN TELECOMMUNICATIONS) REGS 1998 SI 15/1998
RSC O 31 r12
RULES OF THE SUPERIOR COURTS (COMPETITION PROCEEDINGS) 2005 SI 130/2005 ART 4(1)
RULES OF THE SUPERIOR COURTS (COMPETITION PROCEEDINGS) 2005 SI 130/2005 ART 4(2)
Competition - Practice and procedure - Discovery - Competition Acts 1991 and 2002 - Articles 81 and 82 of Treaty of Rome - O. 31, r. 12 of Rules of Superior Courts (No. 2) (Discovery) 1999, S.I. 233/1999 - Rules of the Superior Courts (Competition Proceedings) 2005, S.I. 130/2005
The plaintiff was a company which carried on the business of supplier of call card and other telecommunications services. The defendant imposed a telecommunications interconnection charge on certain operators in the State. The plaintiff claimed that the defendant failed to impose the transit charges evenly or fairly on all operators in the State. In particular, the plaintiff claimed inter alia that the defendant’s actions were contrary to the Competition Act 1991 (now the Competition Act 2002) and contrary to Articles 81 and/ or 82 of the Treaty of Rome. This was an appeal from an order for discovery in the High Court. The defendant contended that the High Court’s order had the effect of directing a party to create documents. The defendant further contended that the relief granted by the High Court was both unnecessary and disproportionate.
Held by the Supreme Court (Geoghegan, Fennelly and Kearns JJ) in allowing the appeal that the courts had been astute to ensure that genuine discovery could be ordered even where advances in technology had the effect that discovery took a different form from that of documents as traditionally understood. The relief granted by the High Court was, in the particular circumstances, both unnecessary and disproportionate at this stage of the proceedings. The likely benefit to the plaintiff of obtaining the discovery was not sufficient to justify the highly unusual and burdensome form of discovery sought. The plaintiff should be at liberty to make a fresh application for discovery following the determination of the issue of liability.
I have had the opportunity of considering the judgments of Geoghegan J and Kearns J, before writing my own.
The first issue raised by the Appellant is that the form of order made by the High Court has the effect of directing a party to create documents for the purposes of the action. For all the reasons given by Geoghegan J, I would reject this ground of appeal.
It is, of course, axiomatic that a court will only order discovery of documents or records which exist. If no record has been made of a relevant conversation, meeting or event, a court will not, for the purpose of discovery, require a party to make one.
That is not what is required by the High Court order in this case. Undoubtedly, the order obliges the Appellant to take very elaborate, complex and costly steps in order to make information available in a form in which it has not previously existed. But the call data records (CDR's) exist and are capable of being retrieved. The order is not equivalent to requiring a party to make a record, where one has never existed.
The rules of court have not been adapted so as to make their objectives conformable to modern technology. The courts have, nonetheless, been astute to ensure that genuine discovery can be ordered even when advances in technology have the effect that discovery takes a very different form from that of documents as traditionally understood. In former times, there would have been a written record of every commercial transaction. Old methods of record-keeping could not have coped with the sheer volume of traffic generated by the new means of communications. I accept that failure by the courts to move with the times by adapting the rules to new technology might encourage unscrupulous businesses to keep their records in a form which would defeat the ends of justice. I would, therefore, like Geoghegan J reject this ground of appeal.
The question which remains is whether the High Court order should be set aside as amounting to a disproportionate measure, having regard to the balance between the necessity, from the Respondent's point of view, of discovery of the Category 9 documents, and the burden placed on the Appellant of complying with the order.
I gratefully accept the very comprehensive summary which Kearns J has given of the facts and the history of the two cases and the background facts. Since I agree with most if not all of the conclusions of Kearns J, I can be brief.
I will consider: a) the issue in the action to which the Category 9 discovery is said to be relevant; b) the reason advanced to justify the necessity for the order for its discovery; c) the burden placed on the Appellant of complying with the order.
I can commence with c). McKechnie J accepted that the order would place "perhaps a heavy burden" on the Appellant. The nature of that burden is described in the judgment of Kearns J and I do not propose to rehearse the evidence. The Appellant has described the technical measures necessitated, the length of time to be taken, the additional staff to be engaged, the need for additional computer equipment and programmes and the expense. Kearns J referred "to the undoubtedly burdensome nature of the form of discovery sought…" and to "the gargantuan task which an order under category 9 would impose on the defendant……"
I accept that it should be only in unusual cases that a court will decline to order discovery of relevant and necessary documents, but I think that the unusual scale and extent of the burden placed on the Appellant requires the Court to examine whether what is sought is likely to produce genuinely useful evidential material.
One then looks at the issues as pleaded and, in particular, any admissions made.
Firstly, it does not appear that the category 9 material is required to establish liability. The Respondent's complaint is that the Appellant engaged for certain periods in unlawful and discriminatory pricing of its services. The Appellant is alleged to enjoy a dominant position in the market for public fixed telephony network and services markets in the State, the leased lines market in the State and the market for payphones in the State. It is claimed that it is obliged by law to adhere to the principle of non-discrimination with regard to interconnection and to ensure that charges for interconnection follow principles of transparency and cost orientation imposed by a European Community directive and that the Appellant's license prohibits it from engaging in cross-subsidising or unfairly subsidising any service or in discrimination between persons regarding the provision of any licensed service or access to any telecommunications network.
The statement of claim alleges that from specified dates the Appellant imposed a telecommunications interconnection charge. Kearns J explains the MAC (mobile access charge) and the PAC (payphone access charge) imposed on all operators in the State between certain dates. The essence of the claim is that these charges were imposed on the Respondent and other operators in the State, but not on telecommunications operators outside the State. It is claimed that these actions constituted breaches of Articles 81 and 82 of the Treaty Establishing the European Community, sections 4 and 5 of the Competition Act,1991 and of the licensing conditions pleaded as well as various regulations and a Council Directive.
It is not claimed that the category 9 documents will assist in establishing any of these complaints. Moreover, the Appellant does not dispute the facts constituting the basic complaint. It accepts that MAC and PAC were applied to national operators alone, in the period running, as regards MAC, from 15th October 2000 until 1st October 2001 and, as regards PAC, from 1st April 2000 until 1st December 2002. Furthermore, the Appellant accepts that this situation presented an arbitrage opportunity to certain operators, which would enable them better to compete with the Respondent. The Appellant does not, of course, accept that its MAC and PAC charges were unlawful. It claims that they were made necessary by regulatory and technical constraints. That is, however, irrelevant at this stage. For present purpose, it must be presumed that the Respondent's claim is maintainable in law.
Kearns J has described the nature of the debate before the High Court in some detail, citing from a number of key documents. I agree with him that the category 9 documents are essentially sought only in order to assist the Respondent...
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