High Court of Ireland Decisions

1. This decision arises from a preliminary application in these proceedings, seeking the court's determination on extent of this Court's appellate jurisdiction, or

2. The Plaintiff contends that pursuant to the appropriate statutory scheme it is entitled to appeal to this court by way of a full rehearing with liberty to adduce new evidence, to bring before the court witnesses of fact and to bring expert witnesses as to the inferences drawn by the first defendant. The Plaintiff contends that this arises, both as a matter of European law, and also by virtue of the interpretation which it places on the appeal provisions of the statutory scheme governing the grant of a licence to operate certain telecommunications systems.

3. Both the first and second defendants reject this contention, although with different emphases and in different degrees, the first defendant conceding that an appeal provided for under the statutory scheme is wider than an appeal by way of judicial review, and the second defendant contending that while there is a statutory appeal provided for, that appeal is very narrow, and closer to that found in judicial review. Neither defendant says precisely what the exact parameters of such an appeal should be. When one comes to view and consider the wording used in the statute, it is easy to appreciate why it is so difficult to place parameters on the scope of the appeal.

4. The background to the issue arising is very simply stated. The first defendant is the Director of Telecommunications, and has held that post for some time.

5. Although for many years, the Minister for Post and Telegraphs held a complete monopoly in the provision of telecommunication facilities, and later this monopoly was passed to a statutory company known as Telecom Eireann, (whose main shareholder was the Minister for Finance), the telecommunication industry has both expanded significantly, and in addition, access to the provision of services in this jurisdiction has “opened up” dramatically, particularly since the State joined the European Union.

6. As part of the deregularisation of, inter alia, the telecommunication industry, new providers of services in that industry have sought licences from the first defendant.

7. These licences, or many of them (if they existed at all), were previously allocated by the Minister for Telecommunications, but through independence requirements

8. At present licenses for the provision of mobile telephone services are provided by Eircell (a subsidiary or former subsidiary of Telecom), and by Esat Digifone. These were granted by the first defendant, or already existed at the time when responsibility for such licences passed to her. Subsequent to the creation of the position of the first defendant, she decided to make available a further, or third, licence for the provision of mobile telephone services. At present I do not know, and do not require to know, the precise details of the services provided by the Plaintiff or by the second defendant.

9. Because there was apparently only one licence available, or more correctly, room in the market (and perhaps also among the available facilities) for one further licensee,

10. The competition was launched by advertisement and was followed by the submission by each of the parties of substantial “tender” documents. This in turn was followed by a detailed oral presentation by each of the parties, speaking to its own tender, and thereafter an evaluation took place. The first defendant was advised at all times by her own staff and by outside expert advisers. The evaluation of the submissions was dealt with on the basis of a set of criteria, 12 in all, for which points were allocated, and this scheme was duly notified to both parties in advance.

11. The first defendant, having ranked the second named defendant first in order of preference in the competition, communicated to the Plaintiff that she proposed to refuse the licence to it. The Plaintiff thereafter made representations, as it was entitled to do under the Act.

12. The first defendant thereafter refused to grant the Plaintiff the licence.

13. From that refusal the Plaintiff has appealed to this Court, and this court must now decide the scope of such appeal. The appeal is brought pursuant to the following statutory scheme:

14. It is important to set out the entire of Section 111 (2)(B) of the Act of 1983 which has been inserted by the Regulation and which reads as follows:

15. The Director now stands in the place of the Minister, where it is the "Minister" who is referred to in the above quoted Regulations.

16. That is the statutory scheme, and it seems to me that what I have to do, at least in the first place, is to see whether there is sufficient clarity and guidance to be found in the words of the statute, to measure the scope of the appeal from the Director is refused. In doing so there is a fairly wide range of principles enunciated in case law, both in this jurisdiction and elsewhere, which act as some guide in the exercise which I have to undertake.

17. The Director is a person in whom the legislature has invested considerable powers. It has powers not only to grant licences in respect of certain telecommunications

18. Without delving into the role of the Director in any great detail, it seems clear that whenever the Director embarks on the grant of a licence, she has available to her, either "in house" or through outside consultants, the benefit of very detailed expertise relative to a consideration of the matter in hand. This obviously will vary depending on what precisely is being dealt with. For example, if she has already granted licence, and she decides to suspend the licence, the extent of the expertise necessary may be different from that which she has

19. Assuming a statutory scheme as has been set forth above, what is the scope of any appeal under Section 111 (2)(B) of the Act? I should approach this, in the first instance, by assuming that all of the steps which are envisaged to be taken under the scheme, are in fact taken and that, up to the point of her decision not to grant a licence, the statutory scheme has been adhered to, by all parties. Again, it is true that Mr. McDowell has a separate allied ground of appeal, arising from his client's contention that the Director failed to give reasons for her decision, contrary to the provisions of Section 111(2)(B)(f) of the Act. However, for the purposes of considering the scope of an appeal under (i), as a general matter, it seems to me that I have to leave aside that ground of appeal, although I will of course return to it in due course. As to (i) itself, it grants a right of "appeal". Does this mean a de novo appeal where the court, in effect, must re-hear the entire matter, as in the case of an appeal from the Circuit Court to the High Court, or in the case of certain types of appeal from the Revenue to the Circuit Court? Or does it mean that the appeal must be on the basis of something less? And if less, what precisely is meant by this lesser right of appeal? Is it on the merits but confined to materials before the Director? Is such lesser right of appeal to be found from a consideration of the section itself, or from a more detailed consideration of the statute as a whole, or from the statute and the Directive, which Section 111 implements into Irish law?

20. Is the statutory right of appeal even less, having regard to the wording of (i), but not so narrow as the remedy of judicial review which is always available, in an appropriate case, to review administrative acts of the Director? Or is there simply an appeal on a pure point of law? I am satisfied it is not confined to a point of law.

21. Mr. McDowell makes several submissions as to the scope of appeal.

22. He says that originally an appeal lay to the District Court from the decision of a Minister, and that

23. Further, Mr. McDowell contends that an appeal on the merits, of a broad type, is what is envisaged by EU law and he says that the appeal format found in the pro forma document governing appeals does not require that an appellant state any grounds for such an appeal. He says that, again impliedly, this points to a wide appeal on the merits. He further argues that it could not have been the intention of the Oireachtas in providing for a new additional means of appeal, to confine such an appeal to a reasonableness type of appeal since an appeal on that basis would always exist, and therefore the words must mean something wider than that.

24. Mr. McDowell contended that he as entitled to an appeal of a type granted in the case of Balkan Tours Limited v The Minister for Communications, infra, as being the case which most closely resembles the type of licensing scheme found in the present case.

25. In contradistinction to this, it is said on behalf of the Defendants that the appeal format found in the pro forma document does not give any guidance to the court as to scope of the appeal to this Court. It is also said that the present provisions are ones which arise from the implementation of Directive 90/338/EC, which requires only that there should be an “appeal”. For the Director, it is further said that European law does not require that any particular type of appeal should exist, on the basis of a recent decision in re Upjohn , where the Court of Justice found that, in the case of an appeal from the decision of a competent authority to revoke a licence (in the pharmaceutical field), the only requirement is that such a decision should be open to challenge by way of legal proceedings. It further held that the rules for appeal should not be less favourable than those governing similar domestic actions.

26. That last principle, as enunciated, does not resolve the matter, because in the present case it is regrettable that there are no Rules of Court governing the method or the scope of an appeal.

27. There appears little or no case law of real assistance on the matter. It is generally agreed by all of the parties that some statutes provide for a "rehearing" and that in such cases, the general rule appears to be that there is a statutory right to an appeal de novo .

28. That is the right which is found in The Courts of Justice Act 1936, which covers an appeal from the Circuit Court to the High Court. However, such is also the wording used in the Rules of the Superior Court in Order 58, Rule 1, which governs appeals from the High Court to The Supreme Court. The Order provides:

29. Despite the foregoing, there is not an appeal de novo in practice to the Supreme Court, and the Court relies on the record of the hearing (and the judgment thereon) in the lower court. But it does, of course, have power to receive further evidence upon questions of fact, and, under the same Rule, the Supreme Court has power to draw inferences of fact "and give any judgment and make any order which ought to have been made and to make such further or other order as the case may require. Mr. McDowell says that one of the reasons why there is, in practice, no rehearing de novo in the Supreme Court, is that there has already been a lis inter partes in the lower court, with all parties in a position to examine and cross examine, but that under the present statutory scheme, no such opportunity is given, and therefore there are grounds for suggesting that a true rehearing should be granted.

30. I am not entirely convinced that this is the rationale behind the manner in which the Supreme Court operates.

31. A somewhat similar provision appears under the Patents Act 1964, and the Trademarks Act, 1963, which - when read together with the Rules of the Superior Courts, in particular Order 94, Rule 4 provide for an appeal by way of “rehearing”, even in the case of applications to the Controller which do not at all involve any so-called earlier “lis inter partes”. The rehearing is confined, under the Rules, to the materials before the Controller when he reached his decision, with liberty granted to the Court to admit further evidence, on special leave. Counsel for the Director accepted that at all times the judicial review remedy would be available, and that what ever (i) means, it is something wider than that, but does not contend for a specific or defined limit on the appeal, save to say that he resists the introduction of any further evidence, either as to facts or as to the inferences drawn by the Director, and says that to do so would, in effect, change the entire nature of the exercise which was carried out, being a competition between two parties.

32. Mr. Gallagher on behalf of Meteor, which sought to be joined as a co-defendant in the proceedings on the basis that it had a justifiable interest in the outcome of the appeal, contends for a narrow statutory appeal, in which no new evidence either of fact or in respect of inferences drawn should be admitted.

33. In the absence of any precedent case for an appeal to this court from a determination by the Director, it seems to me that the approach taken by the parties, namely, to look at other statutes and cases is the correct approach.

34. As to cases in this jurisdiction, I have been referred by all parties to the case of Dunne v Minister for Fisheries (1987) I.R. 230. On the facts disclosed in that case the Appellant, claiming to be an aggrieved party, appealed to the High Court from a decision of the Minister for Fisheries, and sought an order under Section

35. The court went on to state:

36. Having considered a Canadian authority on the limits imposed on appeal in a case where a discretion is given to a Minister, the court said:

37. The court went on to consider another "fisheries" case, namely Dodd v Minister for Fisheries (1934) I.R. 291, a case under earlier fisheries legislation, but which

38. In considering the judgment in this case, the Court in the Dunne case stated:

39. The court went on to say:

40. The principles which I believe can be drawn from the two above cases can be summarised as followed:

41. I have also been asked to consider the case of Needham v The Western Regional Fisheries Board and others , unrep'd. 6 November 1996. That case concerned a decision of the Minister for the Marine relating to a bye-law for the management of fisheries, etc. An appeal lay under the 1959 Fisheries Act (as amended) to the High Court, and such an appeal was mounted (although with a slight "hiccup" along the way as to form). While accepting the judgment of the High Court as to jurisdiction, set out in the earlier Dunne case, to which I have referred, and the analysis which was carried out by the learned High Court

42. And, notwithstanding the foregoing, he further stated:

43. I understand from the tenor of those extracts from the judgment in Needham, that the court felt constrained to follow Dunne (and Dodd), but equally felt constrained to query the legal consequences of so doing. But I do not read the judgment as indicating the existence of a substantive right to a full rehearing as a matter of principle. Rather it follows apparently from the actual wording of the applicable

44. Two further Irish cases call for consideration on the question of the scope of an appeal to this court. The first of these is Balkan Tours Limited v The Minister for Communications (1988) I.L.R.M. 101, upon which Mr. McDowell relies squarely. That decision concerned an appeal pursuant to the provisions of the Transport (Tour Operators and Travel Agents) Act 1982. Under the provisions of that Act, when the Minister intended to revoke a Tour Operators licence, he notified the licence holder of his intention, and invited representations on the matter. The representations were not acceptable to the Minister, who revoked the licence. The Plaintiff appealed from that decision to the High Court.

45. The High court stated, in the course of the judgment:

46. It is unclear from the judgment whether there was any or any significant debate or argument as to the scope of the appeal to the High Court under the 1982 Act. It is certainly clear that no cases on the question of the scope of such an appeal are cited as having been opened to the court. Nor is it clear to what extent the court was influenced by the provisions of Order 102 of the Rules of the Superior Courts, although the court appears to have been influenced by the fact that the matter was to proceed by means of a special summons and affidavits. However, not all applications which proceed to appeal by way of special summons carry an entitlement to supplement or add to material before the decision maker, and I refer for example to the provisions of the Patents Act 1964 and the Rules of the Superior Courts set out above on this point.

47. I do not find it necessarily follows that, because a matter proceeds by way of appeal on a special summons that this gives an automatic right to adduce further evidence,

48. The next case which I was asked to consider was the case of Courtney v Minister for the Marine (1989) I.L.R.M. 605. In that case Section 54 of the Fishers Act 1980 permitted the Minister to make orders specifying areas in which aquaculture could be carried on lawfully. Interested parties could object to the making of an order, and an enquiry could be ordered, to hear any such objections. An enquiry was held and the designation order was thereafter made. After the order was made the objectors found evidence that the proposed activities would cause pollution. No investigation had apparently been carried out by the Minister. The Act in question provided also for an appeal to the High Court, which

49. That extract appears to be the only reference to the jurisdiction which the High Court considered it enjoys under the appeal provisions of the Act of 1980.

50. The appeal was brought by way of special summons according to the record number of the action. However it is equally clear that, whether by consent or otherwise, there was significant evidence adduced orally. Although it is not certain that some of this evidence was by means of affidavit, it is clear that in the case of Professor Barry, the judgment makes it clear that he “testified”, and it is said that Mr. Jack O’Sullivan, “said” etc. So I take it that the vast bulk of the evidence was tendered orally. What however is also clear is that again none of the cases concerning the extent of the scope of an appeal of this kind to the High Court were cited. In the circumstances I consider it highly unlikely that there was any serious debate as to the scope of the appeal. A final “fisheries” case to be considered is the judgment of Laffoy J. in Guiry and another v The Minister for the Marine and others , unrep’d, 24th July 1997, which again concerned the making of a bye-law. The appeal was, again, pursuant to Section 11, and the jurisdiction of the court, in accordance with the principles in the Dunne case, supra, were considered. That was an appeal by means of a special summons and grounding affidavits, and after some debate as to the form which the appeal was pleaded, it was clearly stated by the court that the entire of the evidence was what appeared in the affidavits, that no oral evidence was adduced (or sought to be adduced), and that no person was cross examined on his affidavit. It seems equally clear that the only evidence before the court was the same evidence as had been before the Minister when he was making the decision, and that no party sought to adduce any further or other evidence. The issue was whether, on the evidence before the court at that time, (being the same evidence as was before the Minister), the Bye-law was expedient for the more effectual government, management, etc. of the fisheries of the State.

51. I do not find anything in this judgment which suggests that, because the appeal was by way of special summons, it is the case that the materials before the court will be greater or supplemental to those before the Minister. Nor do I find anything in the judgment to suggest that the court ought to hear the appeal de novo . The appeal appears to have been one “on the merits” but based on the materials which were before the Minister when he made his decision. Nor do I find any principles in addition to those which I believe are found in the Dunne case, supra. Before I turn to the decision of the high Court in the MJ Gleeson case, infra, I should say that I have cited significant extracts from the above cases with a view to

52. In the cases of Dunne and Dodd, both appeals were in unusual circumstances, having regard to the approach of the decision maker to the court, and in particular having

53. I have finally been referred to a recent decision of the High Court in the M J Gleeson v The Competition Authority case, unrep’d, Kearns, J. 26th January, 1999. This was a case in which the scope of an appeal from a determination of the Competition Authority was for consideration. I am not satisfied that the case is really an authority for re solving the dilemma facing me, and moreover there were several Canadian authorities relied on in that judgment which again might not be apt for consideration to the facts of the present case. While I do not have to consider whether the Director is a person to whom the phrase “curial deference” applies, in the sense in which it is used in the MJ Gleeson case, there are ample authorities, including the Dunne case, supra, and the Henry Denny case, in which deference is given

54. In an attempt to apply the above principles, I have to consider first what the words appear to mean or suggest. The sub-section can be divided somewhat in two. Once there is an indication that the Director intends not to grant a licence to an applicant, and an appeal is taken against that decision, the court can (a) confirm the decision, or (b) direct the Director to refrain from granting “the licence concerned.” What is unclear is what is meant by (b). The actual words read: “confirm the decision or direct the Minister, as may be appropriate, to refrain from granting ... the licence concerned, and the Minister shall comply with a direction under this subparagraph and shall not implement the decision unless and until it is appropriate to do so having regard to the outcome of the appeal.”

55. Mr. McDowell argues for the Plaintiff that there is nothing in this subsection which is inconsistent with a full rehearing of the application on the merits. While initially contending for a rehearing de novo, by which I understand him to mean the type of appeal which occurs in the Circuit Court on appeal from the District Court, he did appear to resile somewhat from that by saying that, apart from the question of prejudice, there were two main

56. Mr. Hogan concedes that the Dunne decision is authority for three principles, namely:

57. He contends that the only part of (i) which is germaine to the scope of the appeal is the first part, namely that the court may confirm the decision of the director, and that the balance of the paragraph is inapplicable and does not require to be considered at all, because, he says, there is no licence in existence yet, none has been given to the second named Defendant, and he further contends that the second part is more applicable to the question of revocation or suspension of a licence. He further contends that there may be a lacuna in the paragraph, because he concedes that the court may either confirm the decision or annul it. He also contends that when the word “appeal” is used in statutes, it is generally accepted that “an appeal ... strictly so called in which the question is whether the order of the Court from which the appeal is brought was right on the materials before it,” relying on the case of Ponnamma v Arumogam (1905) AC 383.

58. Mr. Gallagher on behalf of Meteor also suggests that a lacuna may appear in the paragraph, and that the court has power also to annul the decision of the Director. He contends that the true meaning to be attached to the last part of the paragraph is that, while poorly worded, the court may, as a form of interim measure, direct the Minister to refrain from granting a licence to, inter alia, a third party.

59. I am of the view that the paragraph is, at the very least, inelegantly worded, extremely unclear in intent, and not readily applicable to circumstances where it should be, namely, in cases where an application for the grant of a licence is made either by an individual to the Director, or by the Director instigating a competition.

60. However, regardless of its inelegance, I have to endeavour to interpret it. My reading of the section is that it is extremely narrow and, for the reasons which I set out below, probably intended to be. The Directive requires that there should be an appeal from the decision of the Director to refuse the grant of a licence. There is no other appeal mechanism, and I suspect that this is deliberate. Unlike the provisions either of the fisheries legislation, or indeed of the Competition Act, there is no right of appeal given to “an aggrieved” person,

61. Indeed, under the terms of the 1996 Regulations, a decision by the Director to amend a term or condition of an existing licence is not appealable.

62. So it seems to me that there is a deliberate decision on the part of the Oireachtas to limit to a very considerable degree, the appeal access to the High Court.

63. In the present statutory scheme the High Court is given express power to “confirm” the decision, that is to say, to confirm the decision to refuse . I do not think it

64. This appears to suggest that what is to occur is that if a licence is to be granted there is to be a delay in the granting of that licence until it is appropriate to grant it, depending on the result of the appeal. In other words, until the Court is satisfied that the Director did not put a foot wrong in refusing the grant. I find nothing in the subsection which takes the appeal to a level of a rehearing de novo, nor to the level at which the appellant is entitled to reopen the competition, nor to a level at which the court is entitled to substitute its opinion for that of the Director. I am also of the view that words “the licence concerned” cannot be the licence which the Director is refusing to grant to the appellant, because this would be a nonsense, and so in order to give sense to the words in the subsection these words must be read as referring to a licence which is to intended to be granted to someone else, for example, to a person such as Meteor, who has been informed that it has been placed first in a competition for that very licence.

65. If I am correct in my view, then it seems to me that what the subsection is endeavouring to do is to vest in The High Court a form of review procedure which is not of the type found where a “rehearing” is granted. And it is certainly not of the type which calls for a de novo rehearing which might be an appropriate procedure if the appeal were to be to a further administrative body. The subsection does not, as in the case of the fisheries legislation, speak about “confirming or annulling the grant of a licence” in the same way as “confirming or annulling the instrument”. Even the Balkan Tours case, and the appeal procedure under the 1982 Act speaks of “confirming the refusal or

66. It has been said by Mr. McDowell that, although there is an obvious difficulty with the wording of the sub-paragraph - and I agree - this has been cured by the subsequent Regulations passed in 1998, in which it is provided that, in place of the provision by which the Court may direct the Director to refrain from granting the licence, there is a provision by which the Court may direct the Director to refraining from not granting the licence. He says that is, a direction is to grant the licence, and that the Oireachtas has thereby cured the deficiency in the 1996 legislation.

67. I do not believe that I can look to the 1998 Regulations to aid in the correct interpretation of the 1996 Regulations. But even if I could look at them as an aide to the interpretation of the 1996 Regulations, I do not think it follows that the interpretation which Mr. McDowell places on the subsection is the only one, and I think that the 1998 Regulations may, in fact, be even narrower. What they appear to suggest is that, where there is an appeal, the Court may direct the Director to grant “the licence concerned” notwithstanding that there is an appeal to the High Court. But of course it could be that “the licence concerned”, as here, is one which is to be granted to another party, and not to the appellant. Nevertheless, I accept that Mr. McDowell is entitled to argue that, under the 1998 Regulations, he would - on one interpretation - be entitled to ask the Court to direct that the Director would issue the licence to him, and that this might be indicative of a “curing” of an alleged lacuna in the 1996 Regulations.

68. The apparent deliberate policy of the Oireachtas to limit the type of appeal which is available to an appellant from the Director’s refusal to grant a licence seems to me also to be based upon the type of field in which the licence is granted. This is an expert area in which the Director is singularly placed to grant or refuse a licence. Her role is of an administrative nature, it is true, and I take on board the words of Murphy J, in the Needham case as indicative of the reluctance with which this Court should consider embarking on a matter which is so singularly within the competence of an expert body.

69. There is also a further matter to be taken into account. As the Director herself argues, the European legislative background is such that it was at all times envisaged that the licensing system would be operated by a body independent of the telecommunications organisations. It is unlikely that it was envisaged that, on appeal, the Court itself would award the licence, or place itself in the position of substituting its opinion for that of the Director.

70. On balance I am of the view that the subsection is drafted in such terms as to provide for a review type appeal, perhaps slightly wider than judicial review simpliciter, as known in this jurisdiction, and by which the reasonableness of the Director’s decision is ascertained by reference only to the materials which she had before her, and none other, so as to permit the Court to decide if her decision should be confirmed.

71. A subsidiary argument is made by Mr. McDowell that, having regard to the requirement that the Director should give reasons for her decision, and having regard to the contention that she did not do so, a genuine or worthwhile appeal, of value to an appellant, requires that it should be by way of a full rehearing, with liberty to adduce further evidence. I do not agree that the absence of reasons is a valid basis for interpreting the appeal provisions as providing for such an wide review procedure. It seems to me that the appeal subsection has to be read as if all the requirements of the Act were complied with by the Director. I make no finding at this time on the appeal brought on the basis that the Director did not give reasons for her decision.