Telefonica O2 Ireland Ltd v Commission for Communications Regulation and Others

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date11 October 2011
Neutral Citation[2011] IEHC 380
CourtHigh Court
Date11 October 2011
Telefonica O2 Ireland Ltd v Commission for Communications Regulation & Ors

BETWEEN

TELEFONICA O2 IRELAND LIMITED
APPLICANT

AND

COMMISSION FOR COMMUNICATIONS REGULATION
RESPONDENT

AND

MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES AND BT COMMUNICATIONS IRELAND LIMITED
NOTICE PARTIES TO THE MOTION

[2011] IEHC 380

[No. 225 J.R./2011]

THE HIGH COURT

TELEFONICA O2 IRELAND LTD v CMSN FOR COMMUNICATIONS REGULATION & ORS UNREP CLARKE 30.6.2011 2011 IEHC 265

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

O'CONNOR v NENAGH URBAN DISTRICT COUNCIL (UDC) UNREP SUPREME 16.5.2002 2002/22/5541

EIRCOM PLC v DIRECTOR OF TELECOMMUNICATIONS REGULATION 2003 1 ILRM 106 2002/10/2208

MURRAY & GIBSON v CMSN TO INQUIRE INTO CHILD ABUSE & ORS 2004 2 IR 222 2004/33/7522 2004 IEHC 225

1

JUDGMENT of Mr. Justice Clarke delivered the 11th October, 2011

1. Introduction
2

2 1.1 An issue as to the costs of the notice parties to a motion for inspection and discovery of documents has arisen in these proceedings in somewhat unusual circumstances. I have already given judgment on some of the issues which arose on that motion. See Telefonica O2 Ireland v. Commission for Communications Regulation [2011] IEHC 265 ("the previous judgment"). Parties are described in this judgment in the same way in which they were in that previous judgment.

3

3 1.2 However, there have been developments since the previous judgement, not least the fact that the substantive proceedings between O2 and ComReg have been settled by agreement of those parties. In those circumstances it seems to me to be appropriate to start by setting out a brief procedural history of the matters relevant to the cost considerations which arise in this case.

2. Procedural History
4

2 2.1 In the substantive proceedings O2 sought to challenge the fixing of an appropriate rate to be charged to telephone operators as the contribution of such operators to the emergency call service. An outline of the basis for that challenge is set out in the previous judgment. In the context of that challenge, O2 sought access to documentation relating to an agreement between the Minister and BT for the provision of emergency call services which was said to be relevant to the issues. That documentation was, it appeared, in the possession of ComReg. While ComReg had no objection in principle to disclosing the relevant documentation, both the Minister and BT objected to its production on the grounds of confidentiality. Thus, when an application for disclosure (in the form of inspection of some documents referred to in ComReg's statement of opposition and an application for discovery) was made, the court directed that the Minister and BT be notice parties to that application for it was the confidential nature of the arrangement entered into between the Minister and BT (and thus the confidential nature of some of the information that might be disclosed) that was put forward as the basis for the documentation not being disclosed. ComReg had earlier sought the views of the Minister and BT who had declined to agree to the disclosure of the relevant documentation on the basis of the asserted confidentiality to which I have referred.

5

3 2.2 For the reasons set out in the previous judgment, I came to the view that it would be appropriate to direct a modular trial in which the first module would be as to the standard of review which the court should apply in a case such as this. As pointed out in the previous judgment, my reasoning for coming to that conclusion was principally based on the fact that it was accepted by counsel on behalf of O2 that the materials whose disclosure he sought would only be relevant to the case in the event that he were correct in his assertion that, by virtue of the involvement of EU law issues in the case, a standard of review higher than traditional O'Keeffe irrationality (as per O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39) applied. It was accepted that if the traditional Irish standard of review was applicable then the materials sought would not be relevant. As I pointed out in the previous judgment I was faced, therefore, with a situation where what I was satisfied was potentially highly confidential information could be characterised as being only possibly relevant to a case with its relevance being at least in part determined by reference to a discrete issue of European law. In those circumstances it seemed to me that it was appropriate to direct a modular trial with the standard of review issue to be tried first for the result of such a trial would either lead to the relevant material being accepted as being irrelevant (in the event that O2 should lose) or would allow a more focused application of the jurisprudence relating to disclosure of confidential information (in the event that O2 should win).

6

4 2.3 However, before the modular trial to which I have referred came on for hearing I was told that O2 and ComReg had settled the proceedings on terms which were confidential between the parties and did not require any court intervention. In those circumstances the substantive proceeding are, as a matter of practicality, at an end. So far as the costs of the substantive proceedings as and between O2 and ComReg are concerned, I must assume that the agreement reached between those parties deals with any question concerning those costs. However, the costs of the Minister and BT in appearing to resist O2's motion remain to be considered. Counsel for the Minister and counsel for BT suggest that those parties should be entitled to their costs.

7

5 2.4 There is one final complication. Counsel for the Minister indicated, quite properly, that he was unclear as to which of O2 and ComReg ought to be the target of his application for costs for, as he put it, he was unaware of "who had won and who had lost the settlement". In that context counsel for ComReg indicated that, in the event that I was, at the level of principle, persuaded that the Minister and BT were entitled to the their costs, she would wish an opportunity to consider whether further materials ought to be put before the court to assist the court in deciding as against whom any such costs might be awarded. That seemed to me to be an appropriate course of action to adopt. The issue which falls for decision raises questions about the costs of notice parties and, in the particular context of this case, notice parties to an individual motion who are not notice parties to the proceedings generally. I, therefore, turn first to the costs of notice parties.

3. Costs of Notice Parties
8

2 3.1 In the context of the costs of notice parties generally, I was referred to O'Connor v. Nenagh Urban District Council [2002] IESC 42. In upholding the decision of this Court (Johnson J.) to award costs to a notice party in those proceedings, Denham J., speaking for the Supreme Court, held that she would not interfere with the exercise of the trial judge's discretion. In so doing she noted a number of relevant points in the following terms:-

9

a "(a) whereas there was an element of public interest, the application as originally drafted sought specific remedies potentially detrimental to the notice party;

10

(b) the notice party was a necessary party;

11

(c) the notice party participated fully in the trial;

12

(d) the notice party was an entirely innocent party and acted in good faith at all times;

13

(e) the notice party was successful in the proceedings;

14

(f) no compelling reasons have been established as to why costs should not follow the event;

15

(g) the learned trial judge exercised his discretion in accordance with law."

16

3 3.2 Reference was also made to Eircom v. Director of Telecommunications Regulations [2003] 1 ILRM 106. In that case Herbert J. was faced with judicial review proceedings which had become moot by virtue of circumstances outside the control of both the relevant applicant and respondent. In those circumstances it was agreed between the applicant and the respondent that the proceedings as and between them could be struck out with no order as to costs. There had, however, been two notice parties joined, as a result of applications made by those notice parties, which parties claimed a direct interest in the outcome of the proceedings. In one case the applicant did not object to the joining of the relevant notice party without prejudice to any issue in relation to costs and in the other case had unsuccessfully opposed the joining of that notice party. Herbert J. was satisfied that both notice parties had a separate bona fide and material interest in the proceedings and had, therefore, a legal entitlement to be joined for the purposes of vindicating those interests. It is important to note that Herbert J. went on to indicate that once joined those parties were, in his view, "at the very least obligated to set out the basis of their opposition to the application in the form of an affidavit".

17

4 3.3 While both O'Connor and Eircom were cases involving the costs of a person who was a notice party to the judicial review proceedings themselves (rather than, as here, notice parties to only a single motion arising in judicial review proceedings), it seems to me that some general principles can be gleaned from the judgments in those cases.

18

5 3.4 First, it is, of course, open to the court, in joining a notice party, to impose terms whether as to costs or otherwise. Herbert J. in Eircom placed some reliance on the fact that no terms had been imposed on the joining of the notice parties in that case. Second, it seems clear that the outcome of the proceedings (if the proceedings come to a normal conclusion) is itself material. Denham J., in O'Connor, noted that the notice party had been successful. On the other hand in Eircom, Herbert J....

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