Eircom Plc v Director of Telecommunications Regulation and Esat Telecommunications Ltd and Nevada Telecom (notice parties)

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 28 June 2002
• Neutral Citation: [2002] IEHC 72
• Court: High Court
• Docket Number: NO. 539 J.R/2001
• Date: 28 June 2002

[2002] IEHC 72

THE HIGH COURT

Herbert

NO. 539 J.R/2001

EIRCOM PLC v. DIRECTOR OF TELECOMMUNICATIONS REGULATION & ESAT TELECOMMUNICATIONS LTD & NEVADA TELECOM

JUDICIAL REVIEW

BETWEEN

EIRCOM PLC

APPLICANT

AND

THE DIRECTOR OF TELECOMMUNICATIONS REGULATION

RESPONDENT

ESAT TELECOMMUNICATIONS LIMITED, AND, NEVADA TELECOM

NOTICE PARTIES

Abstract:

Practice and procedure - Costs - Notice parties - Notice parties joined to proceedings by court - Notice parties claimed to have material interest in case - Case between main parties resolved - Whether applicant responsible for notice parties costs - Rules of the Superior Courts 1986, Order 99 r. 1 (1)

Eircom sought Judicial Review by certiorari of a decision of the respondent. Later the court ordered East Telecommunications Ltd and Nevada Telecom to be joined as third parties. Eircom did not object to Esat being so joined but objected to Nevada. Both third parties contended that their rights would be materially affected by the avoidance of the decision of the respondent being impugned by the applicant. Subsequently the Judicial Review proceedings were struck out by consent of the parties and the third parties sought their costs.

Held Order 99 rule 1(1) of the Rules of the Superior Courts 1986 gives a discretion to the courts in regard to costs. This discretion must however be exercised judicially and on the facts of each particular case. In deciding on the matter the court considered the third parties’ applications being joined and whether the steps taken by them thereafter were “reasonable” in all the circumstances. The court ordered the third parties the costs of their initial application to be joined to the proceedings but in regard to subsequent costs these would be confined to costs reasonably and properly incurred.

Mr. Justice Herbert

1 The Applicant in this Application for Judicial Review is Eircom Plc and the Respondent is the Director of Telecommunications Regulation. By a letter dated the 11th October, 2001, Esat Telecom was advised by the Solicitors for the Applicant that by Order made on the 30th July, 2001 the Applicant had been granted leave to apply by way of Judicial Review for an order of certiorari quashing the decision of the Respondent directing the Applicant to charge, as interim prices, those prices specified in Decision Notice D.A./01 (O.D. T.R. 01/24), published on the 24th April, 2001. By Order made the 3rd December, 2001 Esat Telecom, and by Order made the 17th December, 2001 Nevada Telecom, each on their own Application, were joined in the matter as Notice Parties. It appears from the terms of a letter dated the 11th October, 2001 from Eircom Plc to Esat Telecom that an undertaking was given by Counsel on behalf of Eircom Plc to the High Court on the 9th October, 2001 to inform Esat Telecom of the existence of the Application for Judicial Review. The Court was not informed as to whether a similar undertaking was given with regard to Nevada Telecom.

2 Both Notice Parties contend that their rights would be materially affected by the avoidance of the decision sought to be impugned by the Applicant. Counsel for Eircom Plc informed the Court that Eircom Plc did not oppose the Application of Esat Telecom but without prejudice to any issues as regards costs, but did strenuously oppose the Application of Nevada Telecom. For reasons which do not concern the Court there is no longer a matter of dispute between the Applicant and the Respondent. Accordingly an Application was made to the Court by the Applicant with the consent of the Respondent to strike out the proceedings with no Order as to costs in favour of the Applicant or the Respondent. Both Notice Parties sought an Order for costs.

3 What is the position of the Notice Parties? At page three of the ruling of the Supreme Court delivered extempore on the 14th April, 2000 by Keane C.J., on behalf of the Court in the case ofSpin Communications trading as Storm F.M. -v- Independent Radio and Television Commission it was held as follows at pages two and three of the judgment:-

"This is a case in which the Notice Party, as indeed the High Court Judge accepted, is a party with a vital interest in the outcome of the matter. As Chief Justice Finlay said in the O'Keeffe -v- An Bord Pleanála case, where you have a party such as the Notice Party in the present case who is vitally interested in the outcome of the proceedings, they must be joined as a party and will be joined by the Court if the Applicant does not join them. In those circumstances, it seems to me that once the Notice Party is there, once he is in the proceedings protecting his interests, he may find himself in precisely the same position as the Respondent. He may find himself in the position that he has been there, of necessity, to protect his interest to advance arguments that may not have been advanced by the I.R.T.C. and to have had the benefit of his own Counsel and Solicitor to protect his interest. It would be quite unjust that he should have to pay his costs because the Applicant company has no assets, where he has been brought there as a necessary party.

I am very far from setting down any general rule because it is always a matter for the High Court in the exercise of its discretion to decide whether a party is entitled to...