Kilkenny Community Communications Co-operative Society Ltd v Broadcasting Commission of Ireland and (by Order of the High Court) CK Broadcasting Ltd (notice party)

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 31 July 2003
• Neutral Citation: [2003] IESC 50
• Docket Number: 94/03
• Court: Supreme Court
• Date: 31 July 2003

KILKENNY COMMUNITY COMMUNICATIONS CO-OPERATIVE SOCIETY LTD v. BROADCASTING COMMISSION OF IRELAND

BETWEEN

KILKENNY COMMUNITY COMMUNICATIONS COOPERATIVE SOCIETY LIMITED

Applicant/Appellant

and

THE BROADCASTING COMMISSION OF IRELAND

Respondent

AND (BY ORDER OF THE HIGH COURT) CK BROADCASTING LIMITED

Notice Party

[2003] IESC 50

94/03

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Judicial review - Applicant's assertion that decision of respondent irrational in that no material before it which would support its decision - Averment by respondent that certain confidential information supporting its decision available to it - Applicant seeking to have such confidential information identified by way of discovery - Whether order for discovery should be granted (94/2003 - Supreme Court - 31/7/2003)

Kilkenny Community Communications v Broadcasting Commission of Ireland - [2004] 1 ILRM 170

the applicant was a disappointed applicant for a radio broadcasting licence for the Carlow/Kilkenny area. It subsequently brought an application for judicial review of the respondent’s decision to award the licence to the notice party. The applicant stated that, in making its decision, the respondent’s contention that the applicant did not appear to have the same level of experience, expertise and knowledge relevant to the specified area as the notice party was irrational, the only names appearing on its submission not being from the area in question. In reply, the respondent stated, in an affidavit sworn for the purposes of the application for judicial review that the notice party indicated in a confidential annex to its submission for the licence that it would benefit from the involvement of two people with extensive local experience and knowledge. The applicant, by way of motion for discovery, then sought to have the names of those two persons identified. That application was refused by the High Court. From that order, the applicant appealed to the Supreme Court.

Held by the Court in dismissing the appeal that without some prima facie case for suggesting that an affidavit sworn for the purposes of resisting an application for judicial review was in some respect incorrect it would be improper to allow discovery of documents the only purpose of which would be to act as a challenge to the accuracy of that affidavit. As there was no prima facie case of wrongdoing by the respondent which would justify discovery, the order of the High Court would be affirmed.

Citations:

RSC O.31 r12

RSC (NO 2) (DISCOVERY) 1999 SI 233/1999

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

GLOR NA NGAEL, RE 1991 NI 117

CARLOW/KILKENNY RADIO LTD & ORS V BROADCASTING COMMISSION OF IRELAND UNREP SUPREME 31.7.2003

R V SECRETARY OF STATE HOME DEPARTMENT EX PARTE HARRISON CA UNREP 1987 TRANSCRIPT 1246

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

R V ARTS COUNCIL OF ENGLAND EX PARTE WOMEN'S PLAYHOUSE TRUST 1998 COD 175

R V LANCASHIRE COUNTY COUNCIL 1986 2 AER 941

JUDGMENT of

Mr. Justice Geoghegan

delivered the 31st day of July 2003

1 This is an appeal from a judgment and order of the High Court (Quirke J.) refusing a motion for discovery in a judicial review application. The background to the judicial review proceedings is that the appellant was a disappointed applicant to the respondent the Broadcasting Commission of Ireland for a sound broadcasting contract for the provision of a local sound broadcasting service on the FM Band in counties Carlow/Kilkenny. This was a newly created franchise area. The applicant/appellant had already held the sound broadcasting contract for the area of the County of Kilkenny which until now was a separate area of its own. It was an express term of the appellant's franchise contract that there was no right of renewal once its seven year term expired in September 2003. That seven year term was an automatic renewal of a previous seven year term commencing in 1989. The contract for the extended area has been awarded to the above-named notice party CK Broadcasting Limited. The judicial review application which was brought pursuant to leave, sought a number of different reliefs on a number of different grounds but what is relevant to this discovery application is that in the course of the reasons given by the respondent as to why the applicant was not successful, the respondent asserted that the appellant did not appear to have the same level of experience, expertise and knowledge relevant to the specified local area as the successful applicant group. In paragraph 32 of his grounding affidavit, Mr. James J. Brett, a director of the appellant company commented on this assertion in the following way:-

"This is totally irrational and flies in the face of the material before the Respondent. The record of the applicant in Kilkenny speaks for itself The Applicant has proved its experience, expertise and knowledge quite simply by running one of the most successful local radio stations in the country. Again it will be recalled that Kilkenny represents almost A,of the modified area. It is the CK bid which exhibits an absence of experience, expertise and knowledge relevant to the specified local area. CK has no representation from Carlow and their Kilkenny representation consists of two persons, John Purcell and Susan Mosse, the latter of whom is a native of the USA. In such circumstances it is utterly bizarre for the respondent to state that it was the applicant which was deficient in local knowledge, experience and expertise."

2 In paragraph 34 of his replying affidavit Mr. Michael O'Keeffe, Chief Executive of the respondent stated the following:

"In addition, for reasons for which the applicant cannot be criticised, paragraph 32 of Mr. Brett's affidavit is not accurate in so far as it deals with the alleged lack of experience, expertise and local knowledge of the successful applicant. In this respect page 10 of the Guide to Submissions provides that commercially sensitive information can be provided in a confidential annex. This facility is available to all applicants in every licensing process. I say that, the successful applicant indicated to the Commission in such a confidential annex, that, in addition to the persons mentioned above, it would benefit from the involvement of two people with extensive experience, expertise and local knowledge. Because of the sensitive nature of this information, the Commission does not wish to put it before the court in affidavit form. However, naturally the Commission will take whatever steps are ordered in this regard by this Honorable Court."

3 It is in this context that the notice of motion sought the following discovery order.

"An Order pursuant to the provisions of O. 31, r. 12 of the Rules of the Superior Courts, 1986 as amended and substituted by S.I.No. 233 of 1999 requiring the Respondent to make discovery on oath of all documents, including where appropriate memoranda, notes and draft documents, which are or have been in its power, possession or procurement, including such documents and drafts of documents which are stored electronically, touching on or concerning:"

(a) Such part of the annex of the bid of KCLR - FM as identifies the two people with extensive experience, expertise and local knowledge' that are referred to at paragraph 34 of the affidavit of Michael O'Keeffe sworn on behalf of the respondent herein on the 27^thday of January 2003. It should be noted that the Applicant does not require to see the whole of the annex, but only such parts of it which relate to the two persons in question."

4 In an ex tempore judgment delivered by Quirke J. on the 4^thof March, 2003 the learned High Court judge said the following:

"In so far as the grounds which are relied upon, the grounds of rationality and...