Orange Communications v Director of Telecommunications Regulation & Meteor Mobile Communications Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mrs Justice Macken
• Judgment Date: 04 October 1999
• Neutral Citation: [1999] IEHC 254
• Date: 04 October 1999

[1999] IEHC 254

THE HIGH COURT

No. 12160p 1998

ORANGE COMMUNICATIONS LTD. v. DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD.

BETWEEN

ORANGE COMMUNICATIONS LIMITED

PLAINTIFF

AND

THE DIRECTOR OF TELECOMMUNICATIONS REGULATION, METEOR MOBILE COMMUNICATIONS LIMITED

DEFENDANTS

Citations:

EEC DIR 90/388

EEC DIR 96/2

EUROPEAN COMMUNITIES (MOBILE & PERSONAL COMMUNICATIONS) REGS 1996 SI 123/1996 REG 4

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111

TELECOMMUNICATIONS (MISCELLANEOUS PROVISIONS) ACT 1996 S3(2)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S3(2)

M & J GLEESON V COMPETITION AUTHORITY 1999 1 ILRM 401

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111(2B)

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

O CLEIRIGH V MIN FOR AGRICULTURE 1998 2 ILRM 263

RADIO LIMERICK ONE LTD V INDEPENDENT RADIO & TELEVISION COMMISSION 1997 2 IR 291

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

METROPOLITAN PROPERTIES CO LTD V LANNON 1969 1 QB 577

TV3 TELEVISION CO LTD V INDEPENDENT RADIO & TELEVISION COMMISSION 1994 2 IR 439

MCAULEY V KEATING 1998 4 IR 138

DE SMITH WOOLF & JOWELL ON JUDICIAL REVIEW 5ED CH 13

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED CH 12

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111(2)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S10

EUROPEAN COMMUNITIES (TELECOMMUNICATIONS SERVICES) REGS 1992 SI 45/1992 REG 7

GENMARK PHARMA LTD V MIN FOR HEALTH 1998 3 IR 111

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111(2A)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111(2B)(h)

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

INTERNATIONAL FISHING VESSELS LTD V MIN FOR MARINE 1989 IR 149

MCCORMACK V GARDA SIOCHANA COMPLAINTS BOARD 1997 2 ILRM 321

O'DWYER V MCDONAGH UNREP BARR 14.10.1996 1997/5/1937

MAIGUESIDE COMMUNICATIONS LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1998 4 IR 115

O'DONOGHUE V BORD PLEANALA 1991 ILRM 750

SWEENEY, STATE V MIN FOR ENVIRONMENT 1979 ILRM 35

EEC DIR 65/65 ART 12

NI EILI V ENVIRONMENTAL PROTECTION AGENCY UNREP LAVAN 20.2.1998 1998/27/10877

ADIA INTERIM V COMMISSION OF EUROPEAN COMMUNITIES 1996 ECR II-321

BOLTON METROPOLITAN DISTRICT V SECRETARY OF STATE FOR ENVIRONMENT UNREP 1995 TLR 309

P & F SHARPE V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

GREAT PORTLAND ESTATES PLC V WESTMINSTER CITY COUNCIL 1984 3 AER 744

ELLIS V SECRETARY OF STATE FOR ENVIRONMENT 1974 31 P & CR 130

GOLDING V LABOUR COURT 1994 ELR 153

MJT SECURITIES LTD V SECRETARY OF STATE FOR ENVIRONMENT 1998 75 P & CR 188, 1997 NLJ 133

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111(2b)(g)

Synopsis

Administrative Law

Bias; reasonableness; duty to provide reasons; appeal by plaintiff under s.111, Postal and Telecommunications Act, 1983 as amended by European Communities (Mobile and Personal Communications) Regulations, 1996 from decision of first defendant to refuse it a licence to operate a mobile telephone service; plaintiff and second defendant had bid for the licence; first defendant reached decision on basis of evalution report; whether decision of first defendant had been biased; whether claimant had shown more than legitimate preference; distinction between preference and bias; whether subjective bias shown; whether reasonable apprehension of bias shown; whether reasonable apprehensions of bias in respect of different issues may be considered together; whether decision of first defendant unreasonable; standard of reasonableness; whether unreasonable decisions on different issues, each not necessarily going to the core of the final decision, may be considered together; whether duty to give reasons under s.111 for proposal to refuse a licence and actual refusal of a licence; purpose for which reasons to be given; extent of reasons required to be given; whether parties had limited scope of their entitlement to reasons by bidding where bids were stated to be confidential.

Held: Where bias or unreasonableness in respect of different issues is shown, the issues may be considered together in order to determine whether or not the final decision should stand; decision biased in certain respects; reasonable apprehension of significant bias shown; decision unreasonable in certain respects; final decision unreasonable because of either bias or unreasonableness in respect of various issues; duty to give reasons exists with regard both to proposal to refuse a licence and actual refusal of a licence; reasons required to allow recipient to make representations to first defendant; reasons should be proper, intelligible and adequate; first defendant failed to discharge duty to provide reasons; the right to reasons was conferred by statute and confidential information could be protected by less drastic means; matter remitted to first defendant.

Orange Communications Ltd v. Director of Telecommunications - High Court: Macken J. - 04/10/1999

The plaintiff initiated plenary proceedings appealing the decision by first defendant not to award it a mobile telephone licence. The plaintiff claimed that the decision itself was unreasonable and so permeated by bias that it could not stand. The plaintiff also claimed that the first defendant was obliged to give reasons for the decision in question and had failed to do so. Mrs. Justice Macken upheld the arguments of the plaintiff, granted the relief sought and remitted the matter back to the first defendant for reconsideration.

1 JUDGMENT of Mrs Justice Macken delivered on the 4th day of October 1999.

2 On the 18th day of March, 1999 I gave a Ruling as to the scope of the appeal in this matter, and this is my judgment on the appeal proper.

BACKGROUND FACTS

3 In late 1997, as part of a continuing programme of liberalisation of the telecommunications industry in Ireland - in turn driven by movement from the European Community - a competition was announced by the first Defendant (whom in this judgment call "the Director") for the award of a licence to operate a mobile telephone service in Ireland. This has come to be known as the "third mobile licence", because there were already in existence two "licensees", namely, Eircell, who were the successors to the monopoly previously held by Telecom Eireann and/or the Minister for Posts and Telegraphs, and Esat, who secured a licence from the Director's predecessor, the Minister for Transport, Energy and Communication.

4 The Competition for the licence was announced by the Director in late 1997, and it is common case between all the parties that at the time there was room in the market for one only further licensee. I understand that this limitation was due both to technology reasons and to market reasons - in other words that there did not exist sufficient spectrum space for more than one further licensee, and possibly also there did not exist a sufficiently large market for more than one further licensee. In any event, the Director was of the view that a competition for the third mobile licence was the way forward and there has been no complaint as to the adoption by the Director of such a route.

5 To understand the issues which arise for consideration in this case, it is necessary to give an outline of the events leading up to the dispute. The Director issued a press release in December 1997, which read, in part, as follows:-

" The award of this licence will be a very important development in the Irish mobile telephone market. The introduction of competition to this market has already resulted in lower rental charges, lower call tariffs and a significant increase in the number of people using mobile phones. The licensing of a third operator will increase competition and provide consumers with a greater choice of operators who must compete on price, quality and range of services to gain and maintain subscribers.

The key features of the licence are

combined DCS 1800/GMS service

minimum coverage using DCS 1800 of one third of the population within two years and a minimum 80% coverage, using both GSM and DCS 1800 within 4 years;

15 year licence

...

The competition has been designed to ensure that the best applicant wins - one who can demonstrate its ability to become a key player in the Irish mobile market."

6 This was dated the 2nd December 1997, as was a note indicating that copies of the tender document were available on payment of a non refundable fee. In part, that note stated:-

" The Irish mobile market offers significant potential for growth over the coming years. Mobile penetration currently stands at about 11% which is below the current EU average. However, Ireland currently has the fastest rate of economic growth in the EU and this is expected to continue for the foreseeable future....

A Summary information memorandum is also available on request and is free of charge."

7 The Information Memorandum is also dated the 2nd December 1997 and was helpfully included in the copy Tender Document furnished to the court as part of the bundle of core documents intended to be used in the course of the hearing. It, in turn, reads in part:-

" 2. Objectives of the Competition"

8 The overall objective of this competition is to increase competition and choice so that the Irish consumer benefits from lower tariffs and the availability of high quality services. The introduction of competition to this market has already resulted in a significant increase in penetration rate for mobile telephony with lower rental charges and call tariffs. It is anticipated that the arrival of a third operator will accelerate the development of the market."

9 ...

" The overall objective of this competition is to stimulate further competition in the mobile sector for the benefit of the end user. An additional nationwide licence would best meet this objective. DCS 1800 technology is less...