Spin Communications Ltd v The Independent Radio and Television Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 08 June 2000
• Neutral Citation: [2000] IEHC 128
• Date: 08 June 2000
• Court: High Court

[2000] IEHC 128

THE HIGH COURT

Record No. 468 JR/1999

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

JUDICIAL REVIEW

BETWEEN

SPIN COMMUNICATIONS LIMITED TRADING AS STORM FM

APPLICANT

AND

THE INDEPENDENT RADIO AND TELEVISION COMMISSION

RESPONDENT

AND

MAYPRIL LIMITED TRADING AS SPIN FM

NOTICE PARTY

Citations:

RADIO & TELEVISION ACT 1988 S5

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

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

HANNON V BRADFORD CITY COUNCIL 1970 2 AER 690

METROPOLITAN PROPERTIES CO (FGC) LTD V LANNON 1969 1 QB 577, 1968 3 AER 304

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

TV3 V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1994 2 IR 439

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

MCAULEY V KEATING 1998 4 IR 138

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

BANE V GARDA REPRESENTATIVE ASSOC 1997 2 IR 449

RADIO & TELEVISION ACT 1988 S6(1)

Synopsis

Administrative Law

Judicial review; certiorari; bias; pre-judgment; fair procedures; application for youth oriented radio licence; applicant an unsuccessful applicant for licence; 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 applicant; member of respondent had raised same concerns with chairman of respondent; whether reasonable apprehension of pre-judgment existed.

Held: Application refused.

Spin Communications Ltd t/a Storm FM v. Independent Radio and Television Commission - High Court: Ó'Caoimh J. - 08/06/2000

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. The applicant claimed that a member of the respondent body had discussed drug issues with members of the gardaí relating to a member of the applicant consortium and thus this displayed an element of pre-judgment and lack of objectivity in the awarding of the licence. The applicant contended that these actions had undermined the licensing process. Ó Caoimh J held that the member of the respondent had engaged in a legitimate enquiry with the gardaí. In view of the full facts of the case no right-minded person could conclude that there was any real likelihood of bias on the part of the respondent. The application for an order of certiorari would accordingly be refused.

1 Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 8th day of June, 2000 .

2 The applicant hereinafter referred to as "Storm FM" applies to this Court for an Order of Certiorari quashing the decision of the Respondent announced on the 11th October, 1999 whereby it deemed the Notice Party hereinafter referred to as "Spin FM" to be the successful applicant for a radio licence for Dublin in the 15 to 34 youth orientated service market. By Order of the 20th December 1999 made by Mr. Justice Quirke, Storm FM was given leave to bring the within proceedings seeking various reliefs including an Order of Certiorari previously referred to on several grounds set forth in the Grounding Statement filed in Court on the 20th December 1999. In essence, the application before me is for the Order of Certiorari based upon one essential ground referred to at paragraph F in the Grounding Statement, namely, that "the decision of the Respondent was made in breach of the Applicant's right to fair procedures and was inherently flawed by the bias of the Commission against the applicant".

BACKGROUND

3 In April 1999 the Respondent sought applications in respect of three commercial radio licences, one of which was to be youth orientated. Storm FM applied for the youth orientated licence, as did seven other applicants including the Notice Party to these proceedings, Spin FM. The invitation to submit applications for the licence was made by the Respondent in accordance with Section 5 of the Radio and Television Act, 1998. The selection of the party to be licensed was to be on foot of a selection process run by the Respondent. Storm FM and Spin FM were short listed for the award of the licence along with Pulse FM and Red FM and were accordingly invited to make an oral presentation to the Respondent. The oral presentations were held on the 27th and 28th September, 1999 and were in the format of a twenty minute presentation followed by twenty minutes of questioning by the Respondent. Following the oral presentation questions were posed to the short listed applicants in written form and were answered by them in writing. On the 11th October, 1999 the Respondent declared that Spin FM was the highest ranked applicant and that it is intended to grant the licence to Spin FM.

4 Following the announcement of the selection of Spin FM as the successful applicant and the announcement of the decision to award the licence in question to Spin FM a letter was written on behalf of Pulse FM, Storm FM and Red FM to the Respondent seeking reasons and explanations in support of its decision in favour of Spin FM. A reply from Solicitors acting for the Respondent indicated the procedures that had been followed by the Respondent. It indicated that at a board meeting of the Respondent members discussed the applicants in a collegiate manner and voted for their choice from a short list of applicants. On this basis the board of the Respondent decided to award the licence for the 15 to 34 youth orientated service to Spin FM. By letter of the 29th October, 1999, Solicitors for Storm FM wrote to the Solicitors for the Respondent seeking reasons for the selection of Spin FM and by reply dated the 3rd November, 1999 the Solicitors for the Respondent stated that the Respondent was not obliged to give reasons for its decision and that it was not possible to give specific reasons as to why one applicant would be selected over another. The letter in question concluded by stating:-

"It is apparent from the detailed considerations given by members at each stage of the process that they each undertook the task as carefully as possible and formed their opinions using the criteria laid down."

5 Storm FM advances its case on two grounds, namely, lack of fair procedures and objective or apparent bias and has not sought to proceed on the other grounds upon which leave was granted by this Court.

6 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 conducted himself with the utmost propriety and impartiality in his capacity as a member of the Respondent and in his personal capacity. This letter also indicated 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:-

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

8 2. If the answer to 1 was in the affirmative, in what capacity did he make the visit?

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

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

11 5. What was the purpose of his visit?

12 6. What if anything did he say to senior garda officers involved about Mr. Reynolds?

13 7. Did he hold himself out as representing the Respondent?

14 8. Why was Mr. Reynolds not informed by him of his action in going to the officers in the Drugs Squad?

15 9. If he had bona fide concerns about Mr. Reynolds and his colleagues why were these concerns not addressed with Mr. Reynolds so as to enable him to vindicate his position?

16 10. Did he have any documentation in his possession, power or procurement generated either before or after his visit to the Drugs Squad?

17 Mr. Reynolds in his affidavit states that these queries remained unanswered and that he was gravely concerned that pre-judgment at least in Dr. Kenny's mind arose in relation to the issue of drugs. He states that his concern that the entire licensing process may have been affected by this bias comes from his understanding that there was a discussion of the bids presumably in an attempt to influence the voting of other members of the Commission and that he does not know what was said about the Storm consortium and him in relation to their attitude to what may be called "the drugs issue".

18 Mr. Reynolds states that he is disturbed that the issues identified in the newspaper article were not raised with him at the oral presentation. He states that if his attitude to drugs was a matter of concern, these should have been raised with him and the reason he is most concerned about this...