Telefonica O2 Ireland Ltd v Commission for Communications Regulation

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 30 June 2011
• Neutral Citation: [2011] IEHC 265
• Court: High Court
• Date: 30 June 2011

Telefonica O2 Ireland Ltd v Commission for Communications Regulation

BETWEEN

TELEFONICA O2 IRELAND LIMITED

APPLICANT

AND

COMMISSION FOR COMMUNICATIONS REGULATION

RESPONDENT

AND

MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES AND BT COMMUNCIATIONS IRELAND LIMITED

NOTICE PARTIES TO THE MOTION

[2011] IEHC 265

[No. 225 J.R./2011]

THE HIGH COURT

PRACTICE & PROCEDURE

Disclosure

Confidential information - Telecommunications - Statutory regulation - Emergency call answering system - Charges - Decision of regulator to determine amount charged to operators - Judicial review - European Union law - Standard of review - Whether disclosure sought relevant - Whether wider standard of review applicable under European Union law - Whether legitimate public interest in maintenance of confidentiality - Whether proportionality between breadth of discovery sought and likelihood of disclosure having meaningful bearing on proceedings - Whether disclosure sought necessary for proper resolution of proceedings - Whether appropriate for court to defer decision on disclosure where not clear whether disclosure necessary at time of application - Whether possible for court to determine standard of review in interlocutory disclosure application - Whether modular trial appropriate - Whether issue of disclosure should be left over until later stage of modular trial - O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Independent Newspapers (Ireland) Ltd v Murphy [2006] IEHC 276, [2006] 3 IR 566, National Irish Bank v Radio Telefís Éireann [1998] 2 IR 465, Thema International Fund plc v HSBC Institutional Trust Services (Ireland) Ltd [2010] IEHC 19 (Unrep, Clarke J, 26/1/2010) and Uniplex (UK) v NHS Business Services Authority (Case C-406/08) [2010] ECR I-00817 considered - Directive 2002/21/EC, art 4(1) - Application adjourned, modular trial ordered (2011/225JR - Clarke J - 30/6/2011) [2011] IEHC 265

Telefonica O2 Ireland Ltd v Commission for Communications Regulation

JUDICIAL REVIEW

Discovery

Standard of review - Manifest error - Serious and significant error - Irrationality - Disclosure - Confidential documentation - Relevance - Proportionality - Public interest - Necessity - Balance of justice - Balance between materiality and confidentiality - Modular trial - Whether stricter European standard of review - Whether standard of review should be "manifest error" or "serious and significant error" - Whether effective mechanism of appeal - Whether materials relevant to question of irrationality - Whether improper factors taken into account - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Independent Newspapers (Ireland) Ltd v Murphy [2006] IEHC 276, [2006] 3 IR 566; National Irish Banks Ltd v Radio Telefis Éireann [1998] 2 IR 465; Thema International Fund plc v HSBC Institutional Trust Services (Ireland) Ltd [2010] IEHC 19, (Unrep, Clarke J, 26/01/2010); Koger Inc v O'Donnell [2009] IEHC 385, (Unrep, Kelly J, 31/7/2009); Yap v Children's University Hospital Temple Street [2006] IEHC 308, [2006] 4 IR 298; Hartside Heineken Ireland Ltd [2010] IEHC 3, (Unrep, Clarke J, 15/1/2010); Ryanair v Commission for Aviation Regulation [2008] IEHC 278, (Unrep, Kelly J, 8/08/2008 ); Hay v O'Grady [1992] 1 IR 210; Sweetman v An Bord Pleanála [2007] IEHC 153, [2008] 1 IR 277 and Uniplex (UK) Ltd v NHS Business Services Authority (Case C-408/08)[2010] 2 CMLR 1255 considered - Communications Regulation Act 2002 (No 20), s 58D - Framework Directive 2002/21, art 2(g) 4(1) - Application adjourned and modular trial directed (2011/225JR - Clarke J - 30/06/2011) [2011] IEHC 265

Telefonica O2 Ireland Ltd v Commission for Communications Regulation

COMMUNICATIONS REGULATION ACT 2002 S58D

EEC DIR 2002/21 ART 4(1)

COMMUNICATIONS REGULATION (AMDT) ACT 2007 S16

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 39

EEC DIR 2002/21 ART 4

INDEPENDENT NEWSPAPERS (IRELAND) LTD v MURPHY 2006 3 IR 566

NATIONAL IRISH BANK LTD v RADIO TELEFIS ÉIREANN 1998 2 IR 465

THEMA INTERNATIONAL FUND PLC v HSBC INSTITUTIONAL TRUST SERVICES (IRELAND) LTD UNREP CLARKE HIGH 26.1.2010 2010 IEHC 19 2010/49/12395

KOGER INC v O'DONNELL UNREP KELLY HIGH 31.7.2009 2009 IEHC 385 2009/32/7793

YAP v CHILDREN'S UNIVERSITY HOSPITAL TEMPLE STREET LTD 2006 4 IR 298

HARTSIDE LTD v HEINEKEN IRELAND LTD UNREP CLARKE HIGH 15.1.2010 2010 IEHC 3 2010/21/5158

RYANAIR LTD v COMMISSION FOR AVIATION REGULATION UNREP KELLY HIGH 8.8.2008 2008 IEHC 278 2008/56/11729

EEC DIR 2002/21 ART 2(G)

HAY v O'GRADY 1992 1 IR 210

SWEETMAN v BORD PLEANALA 2008 1 IR 277

UNIPLEX (UK) LTD v NHS BUSINESS SERVICES AUTHORITY CASE C-406/08

1. Introduction

2 2 1.1 This application relates to the potential disclosure of confidential documentation. In the underlying proceedings the applicant ("O2") seeks to quash a determination made by the respondent ("ComReg") fixing the price at which emergency calls which are free to the public are to be charged as and between service providers.

3 3 1.2 While it will be necessary, in due course, to say a little more about the regulatory regime which governs such emergency calls, there is an obligation, as a matter of European Union law, to permit members of the public to make such calls free of charge.

4 The regime which applies in Ireland is that a single service provider is nominated to handle all such calls by the provision of call centres. The decision as to who should provide such services is made after an open tendering process. At the present time the second named notice party ("BT") holds the contract. The contract itself is between BT and the first named notice party ("the Minister").

5 5 1.3 In simple terms, all emergency calls are, under that contract and the relevant law, handled by BT. Insofar as the caller may be a BT customer, then BT bears the cost of that emergency call. Insofar as the caller may be a customer of another telephone service provider (such as O2), then BT is entitled to charge for the handling of the relevant emergency call at a rate to be fixed by ComReg. The relevant service provided by BT is described as the Emergency Call Answering Service ("ECAS"). ComReg's entitlement to determine the maximum call handling fee that the ECAS operator can charge is made under s. 58D of the Communications Regulation Acts 2002-2010 ("the 2002 Act").

6 6 1.4 There is a sense in which the provision of such free emergency calls is the price paid by service providers for operating in the Irish marketplace. The price is paid, in relation to all providers other than BT, by paying an appropriate proportion of the cost of maintaining the relevant call centres and, in the case of BT, by it bearing its own proportion of those costs.

7 7 1.5 There is a mechanism for determining the amount to be charged. There is no suggestion made by O2 in these proceedings that there is anything wrong with the overall architecture of the relevant scheme. It is accepted that it is permissible for Ireland to put in place a scheme whereby there is a single operator of emergency call centres who is entitled to pass on an appropriate share of the costs of maintaining those call centres to other service providers. O2, therefore, does not make any complaint about the principle that it should have to pay an appropriate share of the reasonable costs of providing a free emergency service to all phone customers (including its own). The challenge in the underlying proceedings refers to the amount currently fixed by ComReg for such charge.

8 8 1.6 In that general context, O2 seeks disclosure of certain documentation relating both to the process whereby the charge was fixed and the contractual arrangements under which BT provides the service concerned. ComReg opposes any greater disclosure than has already been made. In addition, both the Minister and BT were joined as notice parties to this application (even though they are not parties to the proceedings generally) for both the Minister and BT have an interest in arguing in favour of the confidential nature of the information sought to be disclosed.

9 9 1.7 In the course of the hearing before me it became clear that a central question which arises in these proceedings generally (being the question of the standard of review to be applied by the court) had the potential to be of significance in determining the relevance to the proceedings of at least some, and possibly all, of the information and material sought to be disclosed. In those circumstances it is appropriate to turn first to the issue of the standard of review which might be applied in these proceedings generally.

2. The Standard of Review

2 2 2.1 O2 argues that it is appropriate that the court should exercise a standard of review using the "manifest error" or "serious and significant error" tests applied in respect of certain EU law matters. In particular, O2 argues that the requirement contained in Article 4(1) of Directive 2002/21 ("the Framework Directive"), which provides that there should be an effective mechanism available to any undertaking providing electronic communications networks, to appeal against a decision of a national regulatory authority, requires that the court apply what might loosely be called a European standard of review rather than the standard of review traditionally applied by the Irish courts in judicial review proceedings. Reference in that regard is made to McQuen ( Case C-103/96). That proposition is strongly contested by ComReg. That issue would, ordinarily, come to be determined as part of the full hearing. However, the fact that that issue is live has the potential to have some significance for the way in which it is appropriate for the court to address the questions of disclosure which arise in these proceedings. In particular, it was quite properly conceded by counsel on behalf of O2 that the materials...