Orange Ltd v Director of Telecommunications

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mrs. Justice Fidelma Macken
• Judgment Date: 18 March 1999
• Neutral Citation: [1999] IEHC 132
• Date: 18 March 1999
• Docket Number: [1998 No. 12160P]

[1999] IEHC 132

THE HIGH COURT

No.l2160p/1998

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

BETWEEN

ORANGE COMMUNICATIONS LIMITED

PLAINTIFF

AND

THE DIRECTOR OF TELECOMMUNICATIONS AND BY ORDER METEOR COMMUNICATIONS LIMITED

Defendants

Citations:

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

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

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

BALKAN TOURS LTD V MIN FOR COMMUNICATIONS 1988 ILRM 101

EEC DIR 90/338

UPJOHN LTD V LICENSING AUTHORITY 1999 1 CMLR 825

RSC O.58 r1

RSC O.94 r4

DUNNE V MIN FOR FISHERIES 1987 IR 230

FISHERIES ACT 1959 S11

WADE ADMINISTRATIVE LAW 5ED 34

DODD V MIN FOR FISHERIES 1934 IR 291

NEEDHAM V WESTERN REGIONAL FISHERIES BOARD UNREP MURPHY 6.11.1996 1997/5/1820

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S9(3)

TRANSPORT (TOUR OPERATORS & TRAVEL AGENTS) ACT 1982 S9(4)

RSC O.102

COURTNEY V MIN FOR MARINE 1989 ILRM 605

FISHERIES ACT 1980 S54

GUIRY V MIN FOR MARINE UNREP LAFFOY 24.7.1997 1998/20/7736

M & J GLEESON & CO V COMPETITION AUTHORITY 1999 1 ILRM 401

HENRY DENNY & SONS (IRL) LTD V MIN FOR SOCIAL WELFARE 1998 1 IR 34

PONNAMMA V ARUMOGAM 1905 AC 383

Synopsis

Practice and Procedure

Appeal to High Court; nature of appeal; scope of appeal; first named defendant refused to grant a mobile telephone service licence to plaintiff and proposed to grant a licence to the second named defendant; plaintiff appealed against this refusal under s.111, Postal and Telecommunications Services Act, 1983, as amended by European Communities (Mobile and Personal Communications) Regulations, 1996; whether appeal to High Court required a de novo hearing; whether fact that appeal brought by way of special summons meant that materials additional to those before the first named defendant could be adduced in evidence; whether power of High Court to confirm a decision to refuse a licence implied a power to annul such a decision; alternative to confirmation of decision by High Court; whether failure of first named defendant to provide reasons gave rise to a right in the plaintiff to an appeal by way of rehearing; Commission Directive 90/338/EC of 28 June 1990.

Held: Appeal is of a review type, slightly wider than judicial review simpliciter; appeal based only on materials that were before the first named defendant; that appeal brought by way of special summons did not give rise to right to adduce new materials in evidence; scope of appeal strictly limited by Oireachtas; only persons notified of a decision to refuse to grant or to revoke or suspend a licence may appeal; power of High Court to confirm a decision did not imply a power to annul such a decision; if the High Court chooses not to confirm the decision of the first named respondent, it may in the alternative direct the first named respondent to perform specified actions in respect of a licence proposed to be granted to someone else, such as the second named defendant; absence of reasons does not give rise to a wider review.

Orange Communications Ltd v. Director of Telecommunications - High Court: Macken J. - 18/03/1999 - [2000] 4 IR 136 - [1999] 2 ILRM 81

When a right of appeal is provided by statute the duty of the Court is to ascertain its scope and nature from the words of the statutory provision creating that right and in the present case, while the statutory provision was unhappily expressed, it was clear that the intention of the legislature was to create a limited right of appeal. The High Court so held in saying that section 111 of the Postal and Telecommunications Act 1983 provided for a review type appeal but which is wider than judicial review simpliciter. Further, the allegation that the first defendant did not give reasons for her decision did not entitle the plaintiff to a full rehearing.

1 JUDGMENT of Mrs. Justice Fidelma Macken delivered on the 18th March. 1999

2 This decision arises from a preliminary application in these proceedings, seeking the court's determination on extent of this Court's appellate jurisdiction, or what has been called the "scope of the appeal" from the decision of the Director of Telecommunications to refuse to grant a licence to the Plaintiff.

3 The Plaintiff contends that pursuant to the appropriate statutory scheme it is entitled to appeal to this court by way of a full rehearing with liberty to adduce new evidence, to bring before the court witnesses of fact and to bring expert witnesses as to the inferences drawn by the first defendant. The Plaintiff contends that this arises, both as a matter of European law, and also by virtue of the interpretation which it places on the appeal provisions of the statutory scheme governing the grant of a licence to operate certain telecommunications systems.

4 Both the first and second defendants reject this contention, although with different emphases and in different degrees, the first defendant conceding that an appeal provided for under the statutory scheme is wider than an appeal by way of judicial review and the second defendant contending that while there is a statutory appeal provided for that appeal is very narrow and closer to that found in judicial review. Neither defendant says precisely what the exact parameters of such an appeal should be. When one comes to view and consider the wording used in the statute it is easy to appreciate why it is so difficult to place parameters on the scope of the appeal.

BACKGROUND:

5 The background to the issue arising is very simply stated. The first defendant is the Director of Telecommunications and has held that post for some time.

6 Although for many years, the Minister for Post and Telegraphs held a complete monopoly in the provision of telecommunication facilities, and later this monopoly was passed to a statutory company known as Telecom Eireann, (whose main shareholder was the Minister for Finance), the telecommunication industry has both expanded significantly, and in addition access to the provision of services in this jurisdiction has "opened up" dramatically particularly since the State joined the European Union.

7 As part of the deregularisation of inter alia, the telecommunication industry new providers of services in that industry have sought licences from the first defendant.

8 These licences or many of them (if they existed at all), were previously allocated by the Minister for Telecommunications, but through independence requirements imposed pursuant to EU Directives, all such licences are now granted by the first defendant.

9 At present licenses for the provision of mobile telephone services are provided by Eircell (a subsidiary or former subsidiary of Telecom), and by Esat Digifone. These were granted by the first defendant or already existed at the time when responsibility for such licences passed to her. Subsequent to the creation of the position of the first defendant, she decided to make available a further or third licence for the provision of mobile telephone services. At present I do not know, and do not require to know, the precise details of the services provided by the Plaintiff or by the second defendant.

10 Because there was apparently only one licence available or more correctly room in the market (and perhaps also among the available facilities) for one further licensee the first defendant held a competition among those interested in securing the licence in question. Both the Plaintiff and the second defendant "bid" for the third licence.

11 The competition was launched by advertisement and was followed by the submission by each of the parties of substantial "tender" documents. This in turn was followed by detailed oral presentation by each of the parties, speaking to its own tender, and thereafter an evaluation took place. The first defendant was advised at all times by her own staff and by outside expert advisers. The evaluation of the submissions was dealt with on the basis of a set of criteria twelve in all, for which points were allocated, and this scheme was duly notified to both parties in advance.

12 The first defendant, having ranked the second named defendant first in order of preference in the competition, communicated to the Plaintiff that she proposed to refuse he licence to it. The Plaintiff thereafter made representations, as it was entitled to do under the Act.

13 The first defendant thereafter refused to grant the Plaintiff the licence.

14 From that refusal the Plaintiff has appealed to this Court, and this court must now decide the scope of such appeal. The appeal is brought pursuant to the following statutory scheme:

STATUTORY SCHEME FOR APPEAL

15 (a) The first defendant ("the Director") operates pursuant the Postal and Telecommunications Services Act 1983 ("the Act of 1983"), as amended.

16 (b) Certain provisions of the Act of 1983, and in particularly Section 111 have been amended by the European Communities (Mobile and Personal Communications) Regulations 1996. Those Regulations gave effect, inter alia, to Commission Directive No. 90/338/EC.

17 (c) In particular the Directive provides that "Member States shall ensure that from 1 July 1991 the grant of operative licences, the control of type approval and mandatory specifications, the allocation of frequencies and surveillance of usage conditions are carried out by a body independent of the telecommunications organisations."

18 It is important to set out the entire of Section 111 (2)(B) of the Act of 1983 which has been inserted by the Regulation and which reads as follows:

19 2 "2(B)(a) In this subsection, save where the context otherwise requires, "licence" means a licence under subsection (2) to provide a mobile and personal communications service or a mobile and personal communications system.

20 3 (b) A person shall not provide mobile and personal...