Radio Limerick One Ltd v Independent Radio and Television Commission

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 16 January 1997
• Neutral Citation: [1997] IESC 3
• Court: Supreme Court
• Docket Number: [S.C. No. 290 of 1996]
• Date: 16 January 1997

RADIO LIMERICK ONE LTD v. INDEPENDENT RADIO & T.V. COMMISSION

BETWEEN

RADIO LIMERICK ONE LIMITED

Applicant/Appellant

AND

THE INDEPENDENT RADIO AND TELEVISION COMMISSION

Respondent/Respondent

[1997] IESC 3

Hamilton, C.J.

Barrington, J.

Keane, J.

290/96

THE SUPREME COURT

Synopsis:

Judicial Review

Certiorari - termination of local radio contract under s.14(4) W:G7 Radio and Television Act, 1988 - whether evidence of serious or repeated breaches of statutory or contractual obligations - whether termination disproportionate having regard to nature of breach - bias - Held: Certiorari refused - appeal dismissed (Supreme Court: Hamilton C.J., Barrington J., Keane J. 16/01/1997) [1997] 2 IR 291 - [1997] 2 ILRM 1

|Radio Limerick One Ltd. v. I.R.T.C.|

Citations:

RADIO & TELEVISION ACT 1988 S4(3)

RADIO & TELEVISION ACT 1988 PART III

RADIO & TELEVISION ACT 1988 S14(a)(iii)

RADIO & TELEVISION ACT 1988 S10(3)

SHANNON REGIONAL FISHERIES BOARD V BORD PLEANALA 1994 3 IR 437

HAND V DUBLIN CORPORATION 1989 IR 26

COX V IRELAND 1992 2 IR 503

ART 26 OF THE CONSTITUTION & THE MATRIMONIAL HOMES BILL 1993, IN RE 1994 1 IR 305

HEANEY V IRELAND 1994 2 ILRM 420

BOSPHORUS HAVA YOLLARI TURIZM VE TICKARET ANOMIM SIRKETI V MIN FOR TRANSPORT & ORS 1994 2 ILRM 551

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

O'DONOGHUE V VETERINARY COUNCIL 1975 IR 398

DUBLIN & COUNTY BROADCASTING LTD V COMMISSION UNREP SUPREME 12.5.89

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

RADIO & TELEVISION ACT 1988 S14(4)(a)

CASSIDY V MIN FOR INDUSTRY & COMMERCE 1978 IR 297

SOLICITORS ACT 1954, IN RE 1960 IR 239

MCGRATH & O RUAIRC V TRUSTEES OF MAYNOOTH COLLEGE 1979 ILRM 166

RADIO & TELEVISION ACT 1988 S14(1)

RADIO & TELEVISION ACT 1988 S14(4)

RADIO & TELEVISION ACT 1988 S13

RADIO & TELEVISION ACT 1988 S4(8)

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 222

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

CHIEF CONSTABLE OF THE NORTH WALES POLICE V EVANS 1982 1 WLR 1155

R V BARNSLEY MBC EX PARTE HOOK 1976 1 WLR 1052

JOWELL & OLIVER NEW DIRECTIONS IN JUDICIAL REVIEW (1988) 51–72

R V GOUGH 1993 AC 646

O'BYRNE V MIN FOR FINANCE 1959 IR 1

MCMENAMIN V MIN FOR FINANCE UNREP SUPREME 19.12.96

RADIO & TELEVISION ACT 1988 S10

1 JUDGMENT delivered the 16th day of January, 1997 by Keane J. [NEM DISS]

Introduction

2 The Respondent in this appeal (hereafter "the Commission") was established by the Radio and Television Act 1988(hereafter "the 1988 Act") with the object principally of entering into contracts for the provision of radio and television services additional to those already provided by RTE. The huge commercial implications of the granting of franchises to private interests for the provision of radio and television services and the profound influence of the media in modern conditions made it obviously of great importance that the process should take place in a scrupulously fair, public and impartial manner. Those priorities were reflected, not merely in the legislation, but in the appointment of a former member of this court, Mr. Justice Henchy, as the first Chairman of the Commission.

3 The Commission, having been granted a licence by the Minister for Communications (hereafter "the Minister") under s.4(3) of the 1988 Act and having gone through the procedures required by Part III of the same Act, entered into a sound broadcasting contract in respect of the Limerick area with the applicant. This contract was to be for a seven year period from the 14th October 1989, subject to a termination and suspension clause. The Applicant in due course began to transmit its programmes in the Limerick area and has continued so to do up to the present day.

4 One of the journalists employed by the Applicant was Ms. Eileen Brophy (hereafter "Miss Brophy"). She was appointed head of news in January 1993, but left its employment in November 1993. The circumstances which led to her departure were the subject of dispute between her and the Applicant and unfair dismissal proceedings under the relevant legislation were instituted by her. When the matter came before the Employment Appeals Tribunal on February 9th 1994, the parties settled the dispute. At about that time, Ms. Brophy was appointed a member of the Commission by the Government and is still a member.

5 Following a series of events, discussions and correspondence between the Applicant and the Commission, the Commission on 26th February 1996 served what purported to be a notice of termination of the contract pursuant to its terms. The persons on either side principally concerned in the sequence of events which led to this action on the part of the Commission were the respective chief executives of the Applicant and the Commission, Mr. Gerard Madden (hereafter "Mr. Madden") and Mr. Michael O'Keeffe (hereafter "Mr. O'Keeffe").

6 On the 11th March 1996, the High Court (McCracken J.) gave the Applicant leave to apply for, inter alia, an order of certiorari in respect of the decision of the Commission to terminate the licence and an injunction restraining them from terminating the licence. The grounds on which the Applicant relied can be shortly summarised as follows:-

7 (1) That the Applicant had not been guilty of "serious or repeated breaches" of its obligations under the contract or the 1988 Act, thereby entitling the Commission to terminate the contract as alleged by them;

8 (2) That the action of the Commission in terminating the contract was disproportionate having regard to the nature of the alleged breaches;

9 (3) That the decision was unreasonable and constituted unfair discrimination against the Applicant;

10 (4) That the actions of the Commission were prompted by bias on the part of one of its members, i.e. Ms. Brophy.

11 A Notice of Motion applying for the reliefs in question and a Statement of Opposition having been filed on behalf of the Applicant and the Respondent, the matter came on for hearing before Smyth J. A number of affidavits had been filed on behalf of both parties and some of the deponents, including Mr. Madden and Mr. O'Keeffe, were cross-examined at the hearing. In a reserved judgment delivered on the 14th October 1996, the Applicant's claim was dismissed by the learned High Court judge. From that judgment the Applicant now appeals to this court.

12 An interlocutory injunction had been granted in the High Court restraining the Commission pending the hearing of the proceedings from terminating the licence and contract. That injunction was discharged by Smyth J, he having noted an undertaking by the Commission to permit the Applicant to continue to operate under the terms of the contract pending the next appointment by the Commission of a local sound broadcasting operator for the Limerick area.

13 An application for the expedited hearing of the appeal to this Court having been made, a date was fixed for the hearing of the appeal last term. The undertaking given to the High Court was continued and a further undertaking was given by the Commission that no appointment would be made of a sound broadcasting operator for the Limerick area pending the determination of the appeal.

The factual background

14 It is now necessary to consider the facts in more detail.

15 In the Notice of Termination, the Commission listed seventeen matters which they alleged constituted breaches of the Applicant's obligations under the contract or the 1988 Act. They also alleged that fifteen of these breaches were "serious" within the meaning of the contract or the Act. The Notice also stated that the Commission would consider any written representations on behalf of the Applicant which it received prior to the date of termination and it is not in dispute that representations, both in writing and orally, were made on behalf of the Applicant to the Commission before the Notice of Termination was implemented.

16 The matters of which the Commission complained can be summarised as follows:-

17 (1) The exceeding by the Applicant of the time permitted under the relevant provisions of the Act for the broadcasting of advertising and the failure to provide the required proportion of news and current affairs;

18 (2) The broadcast of an unapproved programme on 14th November 1994;

19 (3) The broadcast by the applicant of programmes which were alleged to be, in effect, promotions for particular shops in the Limerick area and hence constituted advertising significantly in excess of what was permitted under the 1988 Act or the contract;

20 (4) The blacking out of 40 seconds of a news bulletin which consisted of a report by Ms. Brophy in her capacity as a journalist which was being carried in the relevant news bulletin provided to the Applicant by a service called "IRN";

21 (5) The failure of the Applicant to supply the Commission with tapes of programmes broadcast by them as required by the 1988 Act and the contract;

22 (6) The failure of the Applicant to provide financial information to the Commission as required by the contract;

23 (7) The refusal of the Applicant to permit an inspection of their operations under the terms of the contract;

24 (8) The failure of the Applicant to notify the Commission of changes in the Board of Directors of the Applicant and changes in the ownership of shares in the Applicant and to obtain approval from the Commission for what was claimed to be a material reconstruction of its business;

25 (9) The failure of the Applicant to bring their acoustic facilities into compliance with the contract until threatened with termination of the contract.

26 It was accepted during the hearing in the High Court and again on the appeal to this court, that some of the breaches alleged were unquestionably of a minor nature or, even if serious, had been...