Vodafone Ireland Ltd v Commission for Communication Regulation

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 13 July 2015
• Neutral Citation: [2015] IEHC 443
• Court: High Court
• Docket Number: [2014 No. 595 J.R.]
• Date: 13 July 2015

[2015] IEHC 443

THE HIGH COURT

COMMERCIAL

Costello J.

[2014 No. 595 J.R.]

BETWEEN

VODAFONE IRELAND LIMITED

APPLICANT

AND

COMMISSION FOR COMMUNICATIONS REGULATION

RESPONDENT

AND

THREE IRELAND (HUTCHISON) LIMITED

FIRST NOTICE PARTY

AND

METEOR MOBILE COMMUNICATIONS LIMITED

SECOND NOTICE PARTY

Telecommunications – Practice & Procedures – O. 99, r. 1 of the Rules of the Superior Courts – Award of costs – Reasonable grounds

Facts: Following the settlement of the proceedings between the applicant and the respondent, and the subsequent joining of the first notice party in the then continuing proceedings by the leave of the Court, the first-notice party now sought an order for the costs against the applicant. The first-notice party contended that the purpose of the applicant to seek the review of the mobile spectrum by the respondent was to secure the reduction of spectrum to which the first-notice party was entitled.

Ms. Justice Costello granted an order to the first-notice party for seeking its costs against the applicant. The Court held that though the first-notice party entered into the litigation out of its own volition, nonetheless, it had reasons to do so. The Court held that while awarding an order for the costs, the Court must see whether the interests of the notice party were going to be affected by the outcome of the case or it was in a position to adduce evidence. The Court held that it must see that the notice party had fully participated in the case and acted in good faith. The Court observed that the settlement of the proceedings would not act as a bar from the recovery of costs because in a complex regulatory telecommunication regime, there would remain issues that had to be revisited and settled annually, thereby leaving a regulatory decision intact for litigating it in a different way, subsequently.

JUDGMENT of Ms. Justice Costello delivered 13th day of July, 2015

1 This is an application by the First Notice Party (‘Three’) seeking its costs against Vodafone Ireland Limited (‘Vodafone’) in these proceedings. The proceedings have been settled by agreement between Vodafone and the Commission for Communications Regulation (‘ComReg’). Three is seeking its costs against Vodafone only.

2 These proceedings arise against the background of the acquisition by Hutchison 3G UK of Telefonica Ireland's (O2) mobile telecommunications business. The merger between Three and O2 was a commercial transaction which required European Commission approval.

3 In the proceedings, Vodafone sought to compel ComReg to discharge its statutory spectrum management function. It maintained that ComReg had failed to discharge its function of managing Ireland's radio frequency spectrum in accordance with law, that it must do so immediately by conducting a public review and consultation regarding the allocation of the mobile spectrum for compliance with the applicable statutory standards because the merger of Three and O2 had had what was described as a ‘seismic’ impact on the regulatory environment of the mobile telecommunications sector in Ireland.

Chronology of events

1 st October, 2013: A merger announced between Three and O2 which was then notified to the European Commission.

21 st February, 2014: Vodafone initiate correspondence with ComReg regarding spectrum management.

28 th May, 2014: European Commission clears the merger subject to certain conditions known as Commitments.

31 st July, 2014: Vodafone sets out it post merger concerns and its contentions as to the legal basis for ComReg's obligation to manage radio spectrum and its duty to undertake a review of spectrum allocation pursuant to domestic legislation in the light of the European Commission's decision of 28th May, 2014.

26 th September, 2014: ComReg internal staff analysis of Vodafone's note of 31st July, 2014, prepared.

13 th October, 2014: Vodafone moves an ex parte application for leave to seek judicial review seeking, inter alia, to compel ComReg to issue a determination or otherwise indicate its substantive response to its submission dated 31st July, 2014.

13 th October, 2014: High Court (Peart J.) grants Vodafone leave to seek judicial review.

14 th October, 2014: ComReg responds to Vodafone's submission of 31st July, 2014 (‘the contested decision’).

14 th & 15th October, 2014: Three's solicitors write to Vodafone's solicitors requesting copies of the statement to ground the application for judicial review, the grounding affidavit and the Order of 13th October, 2014. Documents not forwarded.

16 th October, 2014: Three applies to High Court (Peart J.) seeking copies of the documentation in order that it may decide whether or not it should apply to be joined as a notice party. Peart J. indicated that if proceedings were not served on Three by 20th October, 2014, Three had liberty to bring an application to be joined in advance of the return date for Vodafone's Notice of Motion (25th November, 2014).

17 th October, 2014: Vodafone's solicitors send a copy of the Statement of Grounds to Three's solicitors.

21 st October, 2014: Vodafone's solicitors sent Three's solicitors the perfected Order of 13th October, 2014. Three issues a motion returnable for 4th November, 2014, seeking to be joined as a notice party.

14 th November, 2014: Vodafone's solicitors write stating that they will contest the right of Three to seek costs of the proceedings if joined regardless of the outcome of the proceedings.

17 th November, 2014: Three joined as a notice party to the proceedings.

25 th November, 2014: Vodafone seeks liberty to amend the Statement of Grounds to challenge the contested decision.

26 th November, 2014: Meteor Mobile Communications Ltd. (‘Meteor’) issues a notice of motion seeking to be joined as a notice party.

1 st December, 2014: Order made joining Meteor as notice party and Vodafone given liberty to amend the Statement of Grounds.

9 th December, 2014: ComReg delivers a statement of opposition and grounding affidavit which exhibits the 26th September, 2014, ComReg internal staff analysis of Vodafone's note of 31st July, 2014.

15 th December, 2014: Three delivers statement of grounds of opposition and replying affidavit.

January – April, 2015: Exchanges of affidavits and expert reports between Vodafone and ComReg and one further affidavit of Three dated 9th March, 2015. Each party delivers written submissions in advance of the hearing.

16 th June, 2015: Proceedings listed for hearing.

4 On 12th June, 2015, Vodafone's solicitors advised Three's solicitors of a resolution of the proceedings and mentioned the matter at the callover on 12th June, 2015. By letter dated 16th June, 2015, Vodafone's solicitors wrote to Three's solicitors confirming that Vodafone had agreed with ComReg that the proceedings would be struck out with no orders as to costs and that ComReg would publish an information notice concerning the proceedings within seven days from the date of the making of the order striking out the proceedings. That order was made on 16th June, 2015 and ComReg published an information notice the following day, 17th June, 2015, entitled:-

‘ComReg and Vodafone Ireland Limited agreed to strike out Vodafone's judicial review proceedings [2014/595/JR], with no further order.’

The Information Notice is attached to this judgment in the form of a schedule.

5 Three said that the compromise was a private agreement between Vodafone and ComReg. Three was unaware of and did not participate in the negotiations leading up to the Settlement and is not privy to its terms. The hearing in relation to cost proceeded before me on the basis that the terms of settlement were as set out in the Information Notice of 17th June, 2015. Three brought this application seeking its costs in relation to participation in the proceedings as outlined above.

Submissions of the Parties

6 Three submitted that, in effect, Vodafone had withdrawn the proceedings. The reliefs sought (in the Amended Statement of Grounds) were:-

(a) an order of certiorari quashing a decision of 14th October, 2014, whereby ComReg declined to conduct ‘ a public review and consultation’ of the mobile spectrum in the State in the wake of the merger;

(b) a series of declaratory reliefs regarding a scope of ComReg's spectrum management function, including, inter alia, a declaration that ComReg had a power and an obligation to ‘ take appropriate measures’; and

(c) an order of mandamus compelling ComReg to discharge its function in a particular way by undertaking a review of the mobile spectrum allocation in Ireland.

7 Three submitted that the Information Notice records no concessions to Vodafone. It did not resile from the contested decision and the Information Notice is entirely consistent with, and affirms, the contested decision and the position adopted by Three and ComReg in the proceedings. It points to the fact that the matters referred to at para. 3 all relate to documents which were in the public domain or to the regulatory framework applicable to ComReg. At para. 5 of the Notice, ComReg confirmed matters which were already in the public domain and in particular, matters set out in documents from 2005 and 2011. It submitted that the Confirmations were not encompassed by the relief sought in the proceedings and could not be characterised as concessions to (or ‘ wins’ by) Vodafone.

8 It noted that ComReg maintained the decision set out in its analysis of 26th September, 2014, as follows:-

‘ComReg does not consider, based on the facts within its knowledge, that there is any current need for intervention utilising its spectrum management powers…

It would not be a good use of ComReg's resources to conduct a public consultation of the type envisaged by Vodafone…

For the reasons outlined above, ComReg does not agree with Vodafone's contention that “[t]here are...