The Commissioner for Communication Regulation v an Post

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date08 March 2013
Neutral Citation[2013] IEHC 149
CourtHigh Court
Date08 March 2013

[2013] IEHC 149

THE HIGH COURT

[No. 45 MCA/2012]
Cmsr for Communication Regulation v An Post

BETWEEN

The Commissioner for Communication Regulation
Applicant
V.
An Post
Respondent

INTERPRETATION ACT 2005 S27(1)

INTERPRETATION ACT 2005 S27(2)

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 18(4)(A)

EUROPEAN COMMUNITIES (POSTAL SERVICES)(AMDT) REGS SI 135/2008 REG 2(B)

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 18(3)

EUROPEAN COMMUNITIES (POSTAL REGULATIONS) ACT 2002 REG 4(2)

EUROPEAN COMMUNITIES (POSTAL REGULATIONS) ACT 2002 REG 3(1)

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 4(1)(B)

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 18(2)(B)

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 18(4)

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 18

COMMUNICATIONS REGULATION (POSTAL SERVICES) ACT 2011 S4(2)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S70

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S72

INTERPRETATION ACT 2005 S27(1)(C)

START MORTGAGES LTD v GUNN & ORS UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275

INTERPRETATION ACT 2005 S27

INTERPRETATION ACT 2005 S27(1)(B)

INTERPRETATION ACT 2005 S27(1)(C)

INTERPRETATION ACT 2005 S2(1)

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 4ED PARA 2.94

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 4ED PARA 2.95

WATTS v WINCH 1916 1 KB 688

LOCAL GOVERNMENT ACT 1888 S85

CROWN PROSECUTION SERVICES v INEGBU 2009 1 WLR 2327

TRANSPORT ACT 2000 S219

RAILWAYS ACT 2005 S46

INTERPRETATION ACT1978 (UK) S17

INTERPRETATION ACT 2005 S46(A)

EC DIR 96/67/EC

INTERPRETATION ACT 2005 S4(1)

B v B 1995 1 WLR 440

A (TMA) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 15.1.2009 2009/2/434 2009 IEHC 23

QUINLIVAN v GOVERNOR OF PORTLAOISE PRISON 1998 2 IR 113

MIN FOR JUSTICE v TOBIN UNREP SUPREME 19.6.2012 2012/28/8166 2012 IESC 37

MIN FOR JUSTICE v BAILEY UNREP SUPREME 1.3.2012 2012/25/7268 2012 IESC 16

CHIEF ADJUDICATION OFFICER v MAGUIRE 1999 1 WLR 1778

INTERPRETATION ACT 2005 S4(1)(A)

BARREL v FORDEE 1932 AC 676

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1993 1 IR 101

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 18(2)(A)

EUROPEAN COMMUNITIES (POSTAL SERVICES) REGS SI 616/2002 REG 18

INTERPRETATION ACT 2005 S62(7)

AITKEN v SOUTH HAMS DISTRICT COUNCIL 1995 1 AC 262

R v G (H) 2007 EWCA CRIM 3222

INTERPRETATION ACT 1978 S16(1)

INTERPRETATION ACT 2005 S4

DPP v DEVINS UNREP SUPREME 8.2.2012 2012/12/3336 2012 IESC 7

MURDOCH'S DICTIONARY OF IRISH LAW 5ED P157

COOKE v GILL 1873 LR 8 CP 107

STATUTORY INTERPRETATION

Retrospective effect

Application to court for direction that An Post comply with direction and pay financial penalty - Effect of statutory instrument - Repeal - Vested rights - Regulatory function - Enforcement mechanisms - Imposition of quality standards in respect of provision of postal service - Non-compliance - Statutory instrument under which direction issued repealed - Powers elevated into primary legislation - Regulator of opinion that direction not complied with - No saving or transitional provision - Accrual of right - Formation of opinion component of cause of action - Literal approach - Whether entitled to proceed with application under repealed statutory instrument - Whether right to issue proceedings had accrued or become vested in applicant prior to the repeal - Start Mortgages Ltd v Gunn [2011] IEHC 275, (Unrep, Dunne J, 25/7/2011); Watson v Winch [1916] 1 KB 688; Crown Prosecution Services v Inegbu [2008] EWHC 3242, (Unrep, Davis J, 26/11/2008); B v B [1995] 1 WLR 440; Director of Public Prosecutions v Devins [2009] IEHC 584, (Unrep, O'Keefe J, 2/12/2009); Director of Public Prosecutions v Devins [2012] IESC 7, [2012] 4 IR 491; Quinlivan v Governor of Portlaoise Prison [1998] 2 IR 113; Minister for Justice v Tobin [2012] IESC 37, [2012] 4 IR 147; Minister for Justice v Bailey [2012] IESC 16, [2012] 4 IR ; Chief Adjudication Officer v Maguire [1999] 1 WLR 1778; Barrel v Fordree [1932] AC 676; Howard v Commissioners of Public Works [1993] 1 IR 101; Aitken v South Hams District Council [1995] 1 AC 262; Regina v HG [2007] EWCA Crim 3222, (Unrep, Keen J, 21/11/2007) and Cooke v Gill [1873] LR 8 CP 107 considered - European Communities (Postal Services) Regulations 2002 (SI 616/2001), regs 3(1), 4(1)(b), 4(2), 18(2)(b), 18(3) and 18(4)(a) - European Communities (Postal Services) (Amendment) Regulations (SI 135/2008), reg 2(b) - Interpretation Act 2005 (No 23), ss 2(1), 4(1) and 27 - Communications Regulation (Postal Services) Act 2011 (No 21), s 4(2) - Postal and Telecommunications Services Act 1983 (No 24), ss 70 and 72 - Directive 97/67/EC - Application allowed (2012/45MCA - Hedigan J - 8/3/2013) [2013] IEHC 149

Commissioner for Communication Regulation v An Post

Facts: The applicant was the regulatory body of the post sector pursuant to Regulation 3(1) of European Communities (Postal Services) Regulations 2002 (the 2002 Regulations). The respondent was a post service organisation assigned with the duty to provide a national service for same, pursuant to Regulation 4(2) of the same act. One of the functions of the applicant was to maintain the quality standards of postal services and it had the power to issue directions in pursuance of this aim. A direction was issued by the applicant on 1 st June 2004 to the respondent pursuant to Regulation 4(1)(b) of the 2002 Regulations requiring the latter to meet a next day delivery target of 94% of all single piece mail posted in the state for receipt in the state. Concerns were raised over the next few years about the respondent”s failure to meet the target set. On the 8th July, the respondent was given the opportunity to remedy its non-compliance under regulation 18(2) by achieving 94% no later than the 31st December 2010.

On the 2 nd August 2011, the 2002 Regulations were repealed and replaced with The Communication Regulations (Postal Services) Act 2011 which designated the respondent as the universal post service for seven years. On the 8 th December 2011, the applicant decided that the respondent had failed to meet the necessary target by the 31st of December 2010 deadline and that it would seek a court order pursuant to Regulation 18(3) of the 2002 Regulations compelling the respondent to meet the target advised within a certain timeframe. It also decided to apply under regulation 18(4) of the 2002 regulations for an order that An Post pay a financial penalty of €11,964,680 for 2010 and 2011. The respondent has argued that since the 2002 Regulations had been repealed, the applicant no longer had any entitlement to proceed with its application to court.

Held by Hedigan J that s. 4 of the Interpretation Act 2005 stated that where an enactment has been repealed, and where there is no contradictory intention in the new legislation or legislation repealing the enactment, s. 27(1) of the same Act applies. That stated that where an enactment is repealed, an action under that legislation can be maintained as if it was still active. There was found to be no provision within The Communication Regulations (Postal Services) Act 2011 to deal with circumstances of pending proceedings concerning Regulation 18(3) of the repealed legislation so s. 27(1) was held to be potentially applicable to the current case.

The next issue to be considered was whether a right of action under the 2002 Regulations began to accrue before or after the repeal. It was held that the formation of the applicant”s opinion to apply to the High Court was not an essential step in the procedure and that the right of action began to accrue on the date of non-compliance i.e. the 31st December 2010. The right to act under Regulation 18(3) was then carried over past the date of repeal by s. 27(1) of the Interpretation Act 2005

In regards to the entitlement to seek a court order to impose a fine under Regulation 18(4), it was held that s. 27(2) of the Interpretation Act 2005 and Regulation 18(4)(a) of the repeal legislation made it clear that any action for non-compliance could include an order to pay a penalty.

Declaration on the validity of proceedings made.

Application
1

1. The main issue in this case is the extent to which a statutory instrument, the European Communities ( Postal Services) Regulations 2002 as amended by the European Communities (Postal Services) (Amendment) Regulations ( S.I 135/2008), hereinafter "the regulations", still continues to have effect notwithstanding its repeal due to the provisions of the Interpretation Act 2005.

Two questions have been referred to the court by the respondent for determination as a preliminary issue:

1

Whether s. 27(1) and/or (2) of the Interpretation Act 2005 applies so as to permit the applicant (hereinafter "Comreg") to maintain proceedings as pleaded or at all under regulation 18(4)(a) of the European Communities (Postal Services) Regulations 2002,("the 2002 Regulations") as substituted by regulation 2(b) of the European Communities ( Postal Services)(Amendment) Regulations 2008 ("the 2008 Regulations") as revoked by the Communications Regulation (Postal Services) Act 2011.

2

2.Whether s.27(2) of the Interpretation Act 2005 applies so as to permit the applicant to maintain proceedings as pleaded or at all under regulation 18(3) of the 2002 regulations as substituted by regulation 2(b) of the 2008 regulations as revoked by the Communications Regulation (Postal Services) Act 2011.

Parties
2

2. The respondent's address is General Post Office, O'Connell Street Lower, Dublin. The applicant's address is Block DEF, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1. The respondent is designated as a universal service provider with the obligation to provide a universal service by virtue of Regulation 4(2) of...

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