Spin Communications Ltd v The Independent Radio and Television Commission

• Jurisdiction: Ireland
• Judge: Murray J.
• Judgment Date: 02 February 2001
• Neutral Citation: [2001] IESC 12
• Court: Supreme Court
• Docket Number: [S.C. No. 194 of 2000],No.194/00
• Date: 02 February 2001

SPIN COMMUNICATIONS LTD T/A STORM FM v. INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & MAYPRIL LTD

BETWEEN

SPIN COMMUNICATIONS LIMITED TRADING AS STORM FM

Appellant

-and-

THE INDEPENDENT RADIO & TELEVISION COMMISSION

Respondent

-and-

MAYPRIL LIMITED TRADING AS SPIN FM

Notice party

[2001] IESC 12

Denham J.,

Murray J.,

Geoghegan J.,

No.194/00

The Supreme Court

Synopsis

Administrative Law

Administrative; judicial review; bias; pre-judgment; fair procedures; appellant seeking inter alia an order of certiorari quashing the decision of the respondents whereby it awarded a youth orientated radio licence to the notice party; member of respondent had met with members of Garda National Drugs Unit concerning issue of drugs and dance music and had raised concerns reported in the press regarding chairman of appellant; member of respondent had raised same concerns with chairman of respondent; whether conduct of member of respondent would give rise in the mind of a reasonable person to an apprehension of pre-judgment or bias.

Held: Appeal dismissed.

Spin Communications v. IRTC - Supreme Court: Denham J., Murray J., Geoghegan J. - 02/02/2001 - [2001] 4 IR 411 - [2002] 1 ILRM 98

The applicant had applied for a radio licence in the Dublin area. The licence was eventually awarded to another applicant. The applicant sought an order of certiorari on the basis that the respondent had displayed bias towards the applicant and the decision in question was in breach of fair procedures. In the High Court Ó Caoimh J dismissed the case. On appeal the Supreme Court, Murray J delivering judgment, held that there was no pre-judgment or grounds for bias and the appeal would be dismissed.

Citations

RADIO & TELEVISION ACT 1988 S5

RADIO & TELEVISION ACT 1988 S6(2)(a)

RADIO & TELEVISION ACT 1988 S6

DUBLIN & COUNTY BROADCASTING LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) UNREP MURPHY 12.5.1989 (NOT AVAILABLE)

ORANGE COMMUNICATIONS LTD V DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159 2000/15/5538

O'REILLY V CASSIDY 1995 1 ILRM 306

DUBLIN WELLWOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

RADIO LIMERICK ONE LTD V INDEPENDANT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 IR 291

BULA LTD V TARA MINES 2000 4 IR 412

RADIO & TELEVISION ACT 1988 S6(1)

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

1 Murray J. delivered on the2nd day of February, 2001 [nem diss]

2 In these proceedings the Applicants, and Appellants before this court, Spin Communications Limited trading as Storm FM (hereinafter referred to as the Appellants) have sought, inter alia, an Order of certiorari by way of Judicial Review quashing the decision of the Independent Radio and Television Commission (hereinafter referred to as the Respondent or the Commission) announced on the 11th of October 1999 whereby it awarded a sound broadcasting contract, commonly referred to as a radio licence, to Maypril Limited trading as Spin FM (hereinafter referred to as the Notice Party). The contract awarded was for a radio service for Dublin designed to serve the 15 –34 age group. The proceedings were heard by Mr Justice O'Caoimh in the High Court who by judgement delivered on the 8th day of June 2000 dismissed the Appellants application.

3 It is from the judgement and Order of the learned High Court Judge that the Appellant appeals. There is just one ground relied upon by the Appellants in their appeal that is, that there was objective bias on the part of Dr Colum Kenny who was a member of the Commission and participated in the decision to award the radio licence to the Notice Party. In the appeal the Appellants contend that the facts of the case are such as would lead a reasonable person to apprehend that there was a real danger that his chance of a fair and independent evaluation of the application for the licence did not exist by reason of a pre-judgement made by Dr Kenny.

4 The formal process leading to the award of a sound broadcasting contract or radio licence, may be briefly described as follows. In April 1999 pursuant to Section 5 of the Radio and Television Act 1988the Commission, by way of public advertisement, invited applications for a radio licence for Dublin orientated to the 15 – 34 year old age group.

5 The formal document inviting applications also comprised a guide setting out, inter alia, the format in which applications should be made and the various matters which the commission would take into account in examining applications in the exercise of their statutory functions pursuant to Radio and Television Communications Act 1988.

6 Of the applications received a short list was drawn up which included the Appellants, the Notice Party and two other consortia. Each of these was invited to make an oral presentation which took place on the 27th and 28th September 1999. Each applicant made a formal presentation followed by questioning from the commission.

7 Subsequently the commission decided that the sound broadcasting contract should be awarded to the Notice Party and so announced on the 11th of October 1999.

Background Facts to the Matter in Issue Between the Parties :-

8 Following the announcement by the commission of its award of the radio licence to the Notice Party, the Appellants were clearly dissatisfied with the decision of the Commission. They sought, with other unsuccessful applicants, information from the Commission as to the reasons for the decision and the basis on which it was made. Not being satisfied with the kind of response they received the Appellants sought and obtained, by Order of the High Court dated the 20th December, 1999, leave to bring judicial review proceedings in respect of the said decision on a range of grounds. Most of these grounds were not relied upon in the High Court. The only ground relied upon by the Appellant's in this appeal is, as indicated above, that there was objective or apparent bias on the part of one member of the Commission, namely Dr Colum Kenny, which vitiated the decision.

9 The occurrence which first gave rise to concern on the part of the Appellant's of at least a possible bias on the part of Dr Kenny was a front page article published in a Sunday newspaper on the 28th November, 1999 to the effect that Dr Kenny had "secretly" attended with the National Drugs Unit of the Gardai at Dublin Castle with a view to checking up on Mr John Reynolds. As previously noted Mr Reynolds is a director of the Appellant's company and he is also it's chairman and a shareholder. Mr Reynolds was fearful that the newspaper story, if accurate, may have meant that, unbeknownst to him,some adverse view concerning him and the use of drugs in a night club owned by him had adversely affected the Appellant's application. Accordingly, through his solicitors, he wrote to Dr Kenny seeking to ascertain whether such a meeting had taken place and the import of same. All this is outlined in the Affidavit sworn by Mr Reynolds in these proceedings on the 20th December, 1999. This was responded to by an Affidavit of Mr Michael O'Keefe, Chief Executive of the Commission, dated 17th January, 2000 and subsequently by an affidavit of Dr Colum Kenny himself dated 13th March, 2000. In addition to confirming that Dr Kenny had indeed visited the garda drugs unit, during which Mr Reynolds and his night club POD had been mentioned, the two replying affidavit's disclosed other facts and actions of Dr Kenny concerning what has been referred to as the "drugs issue" relating to his consideration or pre-occupations in relation to the award of the radio licence in question.

10 The facts and circumstances relating to the issue upon which the Appellant's rely for the relief sought in the appeal have been set-out in detail by the learned High Court judge in his judgment. Essentially these facts and circumstances are not in issue between the parties. What is an issue is the interpretation or inferences drawn by the learned High Court judge from those facts and circumstances.

11 Accordingly, I think it is appropriate at this stage to set out the relevant facts and circumstances and position adopted by the parties as recited by the learned High Court Judge:-

12 "On the 28th November, 1999 the Sunday Tribune Newspaper published a front page article recording that Dr. Colum Kenny, a member of the Respondent who voted in respect of the award of the licence in question to Spin Fm, had secretly attended with the National Drugs Unit of the Gardaí at Dublin Castle to check up on John Reynolds, a member of the Storm FM consortium. Thereafter by letter dated the 29th November, 1999, Solicitors for John Reynolds wrote to Dr. Colum Kenny raising various questions in respect of which they sought answers from Dr. Kenny arising from the publication in the Sunday Tribune. This letter was replied to on the 3rd December, 1999 by Messrs. Matheson Ormsby Prentice Solicitors acting on behalf of Dr.Kenny. In this letter it was asserted that Dr. Kenny had instructed his Solicitors to institute defamation proceedings against the Sunday Tribune Newspaper arising out of the article published on the 28th November, 1999. In the letter of the 29th November, 1999 to Dr. Kenny, Mr Reynold's Solicitors raised the following queries:-

13 1. Whether Dr. Kenny had visited the Garda National Drugs Unit at Dublin Castle and there met two senior officers to discuss Mr. Reynolds.

14 2. If the answer to I was in the affirmative, in what capacity did he makes the visit?

15 3. Was the visit in the pursuit by him of his queries made at the behest of the chairman and members of the Respondent?

16 4. Did he communicate with the chairman and with other colleagues concerning the visit to the National Drugs Unit?

17 5. What was the purpose of his visit?

18 6. What if...