High Court of Ireland Decisions

1. The applicant hereinafter referred to as “Storm FM” applies to this Court for an Order of Certiorari quashing the decision of the Respondent announced on the 11th October, 1999 whereby it deemed the Notice Party hereinafter referred to as “Spin FM” to be the successful applicant for a radio licence for Dublin in the 15 to 34 youth orientated service market. By Order of the 20th December 1999 made by Mr. Justice Quirke, Storm FM was given leave to bring the within proceedings seeking various reliefs including an Order of Certiorari previously referred to on several grounds set forth in the Grounding Statement filed in Court on the 20th December 1999. In essence, the application before me is for the Order of Certiorari based upon one essential ground referred to at paragraph F in the Grounding Statement, namely, that “the decision of the Respondent was made in breach of the Applicant’s right to fair procedures and was inherently flawed by the bias of the Commission against the applicant”.

2. In April 1999 the Respondent sought applications in respect of three commercial radio licences, one of which was to be youth orientated. Storm FM applied for the youth orientated licence, as did seven other applicants including the Notice Party to these proceedings, Spin FM. The invitation to submit applications for the licence was made by the Respondent in accordance with Section 5 of the Radio and Television Act, 1998. The selection of the party to be licensed was to be on foot of a selection process run by the Respondent. Storm FM and Spin FM were short listed for the award of the licence along with Pulse FM and Red FM and were accordingly invited to make an oral presentation to the Respondent. The oral presentations were held on the 27th and 28th September, 1999 and were in the format of a twenty minute presentation followed by twenty minutes of questioning by the Respondent. Following the oral presentation questions were posed to the short listed applicants in written form and were answered by them in writing. On the 11th October, 1999 the Respondent declared that Spin FM was the highest ranked applicant and that it is intended to grant the licence to Spin FM.

3. Following the announcement of the selection of Spin FM as the successful applicant and the announcement of the decision to award the licence in question to Spin FM a letter was written on behalf of Pulse FM, Storm FM and Red FM to the Respondent seeking reasons and explanations in support of its decision in favour of Spin FM. A reply from Solicitors acting for the Respondent indicated the procedures that had been followed by the Respondent. It indicated that at a board meeting of the Respondent members discussed the applicants in a collegiate manner and voted for their choice from a short list of applicants. On this basis the board of the Respondent decided to award the licence for the 15 to 34 youth orientated service to Spin FM. By letter of the 29th October, 1999, Solicitors for Storm FM wrote to the Solicitors for the Respondent seeking reasons for the selection of Spin FM and by reply dated the 3rd November, 1999 the Solicitors for the Respondent stated that the Respondent was not obliged to give reasons for its decision and that it was not possible to give specific reasons as to why one applicant would be selected over another. The letter in question concluded by stating:-

4. Storm FM advances its case on two grounds, namely, lack of fair procedures and objective or apparent bias and has not sought to proceed on the other grounds upon which leave was granted by this Court.

5. On the 28th November, 1999 the Sunday Tribune Newspaper published a front page article recording that Dr. Colum Kenny, a member of the Respondent who voted in respect of the award of the licence in question to Spin FM, had secretly attended with the National Drugs Unit of the Gardaí at Dublin Castle to check up on John Reynolds, a member of the Storm FM consortium. Thereafter by letter dated the 29th November, 1999, Solicitors for John Reynolds wrote to Dr. Colum Kenny raising various questions in respect of which they sought answers from Dr. Kenny arising from the publication in the Sunday Tribune. This letter was replied to on the 3rd December, 1999 by Messrs. Matheson Ormsby Prentice, Solicitors acting on behalf of Dr. Kenny. In this letter it was asserted that Dr. Kenny had conducted himself with the utmost propriety and impartiality in his capacity as a member of the Respondent and in his personal capacity. This letter also indicated that Dr. Kenny had instructed his Solicitors to institute defamation proceedings against the Sunday Tribune Newspaper arising out of the article published on the 28th November, 1999. In the letter of the 29th November, 1999 to Dr. Kenny, Mr. Reynold’s Solicitors raised the following queries:-

6. Mr. Reynolds in his affidavit states that these queries remained unanswered and that he was gravely concerned that pre-judgment at least in Dr. Kenny’s mind arose in relation to the issue of drugs. He states that his concern that the entire licensing process may have been affected by this bias comes from his understanding that there was a discussion of the bids presumably in an attempt to influence the voting of other members of the Commission and that he does not know what was said about the Storm consortium and him in relation to their attitude to what may be called “the drugs issue”.

7. Mr. Reynolds states that he is disturbed that the issues identified in the newspaper article were not raised with him at the oral presentation. He states that if his attitude to drugs was a matter of concern, these should have been raised with him and the reason he is most concerned about this issue is that Dr. Kenny identifies an anti-drugs message from the Ministry of Sound, one of the members of the Spin consortium, as a matter which plainly was taken into account by the Commission. Mr. Reynolds says that it appears that the supposed attitude of members of the consortia to “the drugs issue” was a consideration of the Commission. He states that he does not know, in the absence of reasons being given for this action of Spin, what weight was attributed to the issue. He expresses his concern that he was prejudged on the issue and that this resulted in the applicant not being ranked first.

8. On behalf of the Respondent an affidavit has been sworn by its chief executive, Mr. Michael O’Keeffe. At paragraph 34 of his affidavit Mr. O’Keeffe indicates that in view of the pending/contemplated defamation proceedings to be brought by Dr. Kenny against the Sunday Tribune Newspaper, the information sought in the letter of the 29th November, 1999 is privileged. Mr. O’Keeffe proceeds to indicate that Dr. Kenny has informed him that he, like other members of the Commission, did not decide upon the determination of his personal vote on the radio applications until the final meeting of the Commission on the 11th October, 1999. It is stated that Dr. Kenny did so solely on the basis of the written applications, the oral presentations and/or oral or written questions and answers of all the applicants. Based upon this Mr. O’Keeffe asserts that no question of bias or pre-judgment arises.

9. Mr. O’Keeffe rejects the contention that the entire licensing process could have been infected by any alleged bias whether on the part of Dr. Kenny or on the part of any other member of the Commission. Mr. O’Keeffe at paragraph 36 of his affidavit indicates that Dr. Kenny informed him that as a parent, a university lecturer and a member of the Commission, he was and remains very concerned about the question of drugs in Dublin, further that he was aware that all four short listed applicants for the youth licence had referred to drugs, drugs services or narcotics in their original application and in any case he was concerned about the association between certain dance music and the drugs culture and about the association between drugs and the Dublin club scene. Mr. O’Keeffe was informed by Dr. Kenny that in order to get a feel for the reality of the drugs culture before making his decision on the present application process, he visited members of An Garda Síochána for a general discussion about drugs and about drugs in night-clubs. Dr. Kenny made a single reference to John Reynolds in the context of the POD nightclub in circumstances where the Harcourt Street premises which housed the POD had been identified by Storm FM as the consortium’s address and its principal place of business. This premises had been referred to in a Court report in the Irish Times related to the prosecution of persons for drug offences. Mr. O’Keeffe continues by stating that the members of An Garda Síochána with whom Dr. Kenny was in discussion fully endorsed the manner in which Mr. Reynolds carried on his business at the POD. He says that none of the members of the Commission or the executive of the Commission was aware of Dr. Kenny’s intended visit to the Garda Síochána. He says that after Dr. Kenny’s visit to the Garda Síochána he did not raise the matter at any meeting of the Commission or with the executive of the Commission.

10. Mr. O’Keeffe says that the drugs issue was in fact raised with the applicant on the day of the public hearings. Mr. O’Keeffe says that one of the questions adopted by the board of the Commission to be put to applicants at the public hearings was one relating to drugs or substance abuse. Mr. O’Keeffe says that the applicant raised no objection to the question on substance abuse and responded by making a number of a statements relating to both the programming and character of Storm FM in the context of drugs. Mr. O’Keeffe indicates that save in this respect the issue of drugs did not form part of any deliberation of the Commission.

11. Colum Kenny has sworn an affidavit in these proceedings in which he indicates that an article written by him on the 17th October, 1999 specifically states that it reflects the personal views of Dr. Kenny on matters in the public domain and that the views expressed therein are in no way necessarily representative of the Commission’s view. Dr. Kenny states that at a meeting of the Commission on the 6th September, 1999 the seven applicants for the Dublin youth orientated radio licence were short listed to four. He says that on the 7th September, 1999 Mr. Michael O’Keeffe, chief executive of the Commission, wrote to the individual members of the Commission to confirm that a meeting would be held on Wednesday, the 22nd September, 1999 in order to agree questions to be put to applicants at the then forthcoming public hearings which were scheduled to take place on the 27th September, 1999. He says that Mr. O’Keeffe invited each member of the Commission individually to forward within one week any particular questions which he or she wished to include in respect of any or all of the applicants. Dr. Kenny indicates that in deciding what questions to propose in response to the chief executive’s invitation he further read and considered the applications of the four short listed applicants for the youth orientated service. He says that all four short listed applicants referred to a greater or lesser extent to the issue of drugs or drugs services in the context of the Dublin youth service. He says that as a parent, university lecturer, journalist and member of the Commission he was and remains very concerned about the issue of drugs in Dublin.

12. Dr. Kenny states that he wished to discuss the issue of drugs and the drugs scene in Dublin with the Garda Síochána before proposing any specific questions about drugs to put to applicants at the then forthcoming public hearings. He believed that an appropriate source of reliable and impartial information about the drugs scene in Dublin and in general was the Garda Síochána National Drugs Unit which has a public information role as well as an enforcement function. Accordingly, he arranged a private meeting with members of the Nationals Drugs Unit and the meeting in question took place on the morning of the 13th September, 1999. Dr. Kenny indicates that he did not discuss his intended visit to An Garda Síochána with any member of the Commission or with the executive of the Commission and accordingly such persons were not aware of his intended visit to An Garda Síochána. Dr. Kenny says that the purpose of the meeting was to discuss generally the drugs scene in Dublin. He says that the greater part of his discussion with the National Drugs Unit was intended to relate and did relate to matters of a general nature concerning the drugs scene in Dublin. In the course of his meeting with the Gardaí he mentioned a recently published Court case about the POD during which the District Judge had reportedly described it as “a den or place of drugs rather than a place of dance”. He refers to the newspaper report and to the fact that it indicates that the District Judge in question urged the Superintendent for the Dublin Metropolitan Area to take into account the evidence of drug dealing when the club's annual licence came up for renewal. Dr. Kenny says that in this context he adverted to the connections between Storm FM and the POD which include the fact that Storm FM’s principal place of business is the Harcourt Street premises which houses the POD and that the chairman of Storm FM owns the POD. Dr. Kenny indicates that at the meeting he was informed by members of the Garda Síochána National Drugs Unit that a number of clubs including the POD had put in place systems of control in relation to drugs which the Gardaí fully endorsed but which they would continue to monitor. He says that he was informed by Detective Chief Superintendent Ted Murphy, the head of the National Drugs Unit, that he believed it was not the intention of the Gardaí to oppose the renewal of the POD’s licence. The detective chief superintendent told him that he wished to double-check with other officers that this information was up to date and suggested that he follow up the meeting with a telephone conversation to confirm that the position was as indicated to him at the meeting. He states that it was suggested that he telephone Superintendent Barry O’Brien later that week to check the position. He says that he did telephone Superintendent Barry O’Brien on or about the 17th September and was informed that the position remained as indicated to him at the meeting.

13. Dr. Kenny states that he did not raise the matter of his visit to An Garda Síochána at any meeting of the Commission or with the executive of the Commission. He says that he formulated and sent to the chief executive twelve proposed questions on a variety of topics for the applicants including one only on the issue of substance abuse which was of a general nature. He says that the purpose of his question was to elicit responses which would allow the Commission at some future date to monitor the specific commitment over programming content in relation to drugs, regardless of whom eventually was to be awarded the contract.

14. Dr. Kenny states that as the oral hearings approached he had a twofold concern as to how the issue of drugs was to be approached in the context of the application of Storm FM. On the one hand the Commission was obliged by Section 6(2)(a) of the Radio and Television Act, 1988 to have regard to the character of the applicant and, where the applicant is a body corporate, to the character, inter alia, of its directors. He points out that John Reynolds was a director of the applicant. He was the owner of the POD nightclub which had been the subject of the comments of the District Judge previously referred to. On the other hand, there was no evidence of which he was aware that Mr. Reynolds or any other director of that company was personally implicated in any way in anything untoward relating to drugs. He states that he was concerned to clarify the true relevance of these matters in the context of the application for a licence from Storm FM. With that in mind he arranged to speak informally to Conor Maguire, S.C., the chairman of the Commission. He arranged to meet the chairman immediately prior to the meeting of the 22nd September, 1999. Prior to the meeting he prepared a draft letter to the chairman setting out his concerns as described, which he believed the chairman saw for the first time immediately prior to the meeting. A copy of this letter was exhibited in Dr. Kenny’s affidavit and is annexed to this judgment.

15. Dr. Kenny states that he did not refer to his visit to the Gardaí at his meeting with the chairman but that he outlined his concerns as described in the letter and as described in his affidavit. The chairman advised him that in the absence of any evidence implicating Mr. Reynolds or any other director of the applicant company, it would be unfair and inappropriate to raise or challenge the character of the applicant company or to draw any adverse inference relating to the character of the applicant or its directors on the basis of “the drugs issue”. He states that having discussed the matter with the chairman he agreed with his assessment.

16. Dr. Kenny states that at the oral hearing held in the Killiney Castle Hotel on the 27th September, 1999, the applicant company, in its presentation, made no reference to the drugs issue. He says no member of the Commission either raised or challenged the applicant on the drugs issue. He says that the only question which might be said to relate to the drugs issue was a question asked by the chairman as to the reason for the choice of the title “Did you inhale?” for a political programme proposed by the applicant company. Mr. Reynolds answered by indicating that the proposed title was referable to a remark once made by President Clinton. Dr. Kenny furthermore indicates that on the day of this oral hearing the applicant was also handed the Commission’s written questions including a question on substance abuse which he had prepared. He states that a written response from the applicant was received on or about the 4th October, 1999 and this is also annexed to this judgment.

17. Dr. Kenny states that there were certain aspects of the written response from the applicant which appeared to him not to tally exactly with the information he had received from the Gardaí. The first was a reference to Detective Inspector Brian Sutton being the head of the National Drugs Unit and the second was a reference to the POD having received a clean bill of health. Dr. Kenny states that his information was to the effect that Detective Chief Superintendent Ted Murphy was the head of the National Drugs Unit and that the Gardaí continued to monitor the POD in the same way that the Gardaí monitor all other night-clubs. Accordingly, he telephoned Detective Chief Superintendent Ted Murphy on the 6th October, 1999. It was confirmed to Dr. Kenny that Chief Superintendent Ted Murphy was the head of the National Drugs Unit and not Detective Inspector Brian Sutton. It was also confirmed to him that no nightclub received a clean bill of health as such from the National Drugs Unit. It was further indicated that the systems of control in relation to drugs which were in place in the POD and which were endorsed by the Gardaí were the result of ongoing communication between Mr. Reynolds and the Gardaí which had been initiated by the Gardaí. On receipt of this information and in advance of the final meeting of the Commission to be held on the 11th October, 1999, Dr. Kenny prepared a document with a view to clarifying in his own mind whether the information altered in any way the view which he had reached on the 22nd September, 1999. A copy of this document is annexed to this judgment. Having considered the matter and the document which he had prepared, Dr. Kenny concluded that the position had not changed and that, particularly having regard to the fact that there was no evidence linking Mr. Reynolds or any other director of the applicant company with anything untoward in relation to drugs, it remained the case that it would be unfair and inappropriate to raise or challenge the character of the applicant in any way or to draw any adverse inference in relation to the character of the applicant company or its directors based upon what was described as “the drugs issue”. Dr. Kenny points out that at the meeting of the 11th October, 1999 he did not raise and no other member of the Commission raised any comment in relation to the written response from the applicant company on the question of substance abuse nor indeed any question at all in relation to the approach of the applicant company or Mr. Reynolds to what may be described as “the drugs issue”. Dr. Kenny indicates that following his meeting with the chairman on the 22nd September, 1999 the only communication that he had with other members of the Commission which might be said in any way to be referable to the drugs issue related to a programming proposal. It appears that on the 27th September, 1999 he expressed some reservation to the members of the Commission to whom he was then talking concerning the choice of the title “Did you inhale?” for the political programme proposed by the applicant company. Dr. Kenny points out that the question of drugs took up a relatively small proportion of the total consideration devoted to the Applicant’s bid. He states with regard to the discharge of his obligation to consider the character of the directors of the applicant company, having considered the matter he was satisfied without feeling a necessity to raise the issue with the applicant, that there should be no challenge to the character of the applicant company or its directors and that there should be no adverse inference drawn in relation to the character of the applicant company or its directors based upon what is described as "the drugs issue”. Dr. Kenny says that he did not decide upon the determination of his personal vote on the radio applications until the final meeting of the Commission on the 11th October, 1999 and that he did so solely on the basis of the original written applications, the oral presentations, the oral/written questions and answers of the applicants and the consideration of same conducted by the Commission as a whole. He says that the “drugs issue” so far as it relates to the applicant formed no part of the basis on which he cast his vote.

18. Counsel for the Applicant have prepared written submissions for the Court and furthermore made oral submissions to this Court. Based upon the facts it is submitted that the differences in the affidavits of Mr. O’Keeffe and that of Dr. Kenny give rise to an allegation of objective bias. It is further submitted that the letter of the 22nd September, 1999 addressed to the chairman shows an animus of Dr. Kenny directed to Mr. Reynolds. It was further submitted that the Court is entitled to have regard to the manner in which information has been extracted from Dr. Kenny. In this regard it was submitted that Dr. Kenny’s affidavit was filed very late in the day long after the affidavit from Mr. O’Keeffe. The applicant relies upon the fact that Dr. Kenny did not disclose to the chairman or the members of the Commission his visit to An Garda Síochána and his subsequent contacts with the Gardaí. It is further submitted on behalf of the applicant that documents were concealed from Mr. O’Keeffe when he swore his affidavit or if disclosed to Mr. O’Keeffe but not referred to in his affidavit that it would call Mr. O’Keeffe’s actions into question. However, it is submitted on behalf of the applicant that it accepts that Mr. O’Keeffe has acted at all times bona fide and in good faith. It is submitted the actions of Dr. Kenny show that he had an unsatisfactory view of Mr. Reynolds. Query is raised as to why no contact was made with Inspector Sutton in light of what was stated in the information supplied by the applicant company. It is further submitted that the licence for the POD nightclub would have been renewed at this time. A further query is raised as to why Dr. Kenny did not exhibit his telephone attendance relating to his telephone call on the 6th October, 1999 to the Garda Síochána. The applicant queries whether Dr. Kenny had at any time altered his mind from the position outlined on the 22nd September and submits that the letter of that date is brimful of criticism of Mr. Reynolds and that Dr. Kenny had rightly or wrongly formed an unfavourable view of Mr. Reynolds. It is further submitted that this unfavourable view was at no time addressed to Mr. Reynolds himself. It is further submitted that the facts reveal objective bias and a positive animus towards Mr. Reynolds. It is further submitted that once one branch of the Commission is poisoned, all branches of the Commission are affected by the same poison. Accordingly, it is submitted that the decision of the Commission is tainted and poisoned and should be set aside by this Court. On behalf of the applicant it was further submitted that the protestations on the part of Dr. Kenny fly in the face of the facts insofar as it is asserted that it would be unfair and inappropriate to raise or challenge the character of the applicants in any way or to draw any adverse inference in relation to the character of the applicant company or its directors based upon what is described as "the drugs issue”. With regard to Dr. Kenny’s considering the title of the programme “Did you inhale?”, it is submitted that standing alone this criticism does not amount to very much but taken together it copper fastens the manifest attitude and animus of Dr. Kenny towards Mr. Reynolds. Insofar as Dr. Kenny did not disclose his meeting with members of the National Drugs Unit, the question is asked whether he is proud of the non-disclosure or why did he keep other members of the Commission in the dark. It was further submitted that the assertion at the end of paragraph 39 of Mr. O’Keeffe’s affidavit which states “save as set out above, the issue of drugs did not form part of any deliberation of the Commission” contrasted with the terms of Dr. Kenny’s own affidavit. It was submitted that the “covert and surreptitious activities of Dr. Kenny” generated a legitimate concern on the part of Mr. Reynolds and the applicant and that the applicant was dealing with one member having an animus and demonstrating objective bias towards the applicant headed by Mr. Reynolds, the owner of the POD nightclub. It was submitted that Dr. Kenny had concealed his agenda in his conversation on the 22nd September, 1999. It was further submitted that the document prepared by Dr. Kenny between the 6th and 11th October demonstrated Dr. Kenny’s hostility towards Mr. Reynolds insofar as Dr. Kenny was querying the bona fides of the chairman of the applicant consortium. It was submitted that this briefing document in effect amounted to a finding of fact against Mr. Reynolds.

19. Counsel for the applicant has referred this Court to the unreported decision of Murphy J on 12th May, 1989 in the case of Dublin & County Broadcasting Limited, applicant -v- Independent Radio and Television Commission, Radio 2000, Capital Radio Productions, Respondents. At page 13 of his judgment Murphy J indicates that the question of bias must be determined on the basis of what a right-minded person would think of the real likelihood of prejudice and not on the basis of a suspicion which might dwell in the mind of a person who is ill-informed and who did not seek to direct his mind properly to the facts. Murphy J stated at page 13 of his judgment, inter alia, as follows:-

20. Counsel further referred to a portion of a judgment of Murphy J where he referred to the decision of the Court of Appeal in the case of Hannon -v- Bradford City Counsel , [1970] 2 All E.R. 690 and in particular the judgment of Sachs LJ at page 693 and 694 of the report where reference was made to a portion of the judgment of Lord Denning MR in Metropolitan Properties Co. (F.G.C.) Limited -v- Lannon , [1969] 1 QB 577; [1968] 3 All ER 304 at pages 599 and 310 respectively where the Master of the Rolls stated:-

21. Counsel further referred this Court to the decision of the Supreme Court in the case of Radio Limerick One Limited -v- Independent Radio and Television Commission , [1997] 2 I.R. 291 at 316 where Keane J delivering a judgment with which the other members of the Court approved, stated as follows:-

22. With regard to the Applicant’s case of want of fair procedures, insofar as it was not acquainted with the thinking of Dr. Kenny prior to the decision being made and given an opportunity to address his concerns, reliance has been placed upon the judgment of Blayney J in the case of TV3 -v- Independent Radio and Television Commission , [1994] 2 I.R. 439 and in particular the portion of the judgment appearing at page 454 where he stated:-

23. Mr. Cush, Senior Counsel for the Respondent, submitted that there were three extraneous matters which should be disregarded by the Court, namely:-

24. Counsel referred to the history of the matter between the 17th January, 2000 and 13th March, 2000 where security for costs was ordered by this Honourable Court. He submitted that it was on that occasion, on 13th March, 2000, that the affidavit of Dr. Kenny was filed in circumstances where security was to be furnished to the Court and where certain matters addressed by Dr. Kenny were necessary to ensure that the Court directed security. Counsel pointed out that, when the affidavit of Dr. Kenny had been delivered, the case, with the exception of the issue of bias and want of fair procedures, was abandoned by the applicant. With regard to the question of the alleged concealment of documents it was pointed out by Counsel that voluntary discovery was agreed between the parties in the terms sought in a letter of the 21st January, 2000 and this was furnished by letter of the 8th February, 2000. With regard to the alleged inconsistencies between the affidavits it was submitted by Counsel that there was no inconsistency and even if he was wrong in this respect that little attention should be paid to the matter because this is not a case in which actual bias is alleged but objective or perceived bias is relied upon by the applicant. While Counsel denied the alleged inconsistencies, he said that there was some possible lack of completeness in the affidavit of Mr. Michael O’Keeffe insofar as he did not deal with the subsequent contact between the Gardaí and Dr. Kenny. It was submitted by Counsel that at an earlier stage in the proceedings the issue of bias was but a minor matter in the case. Counsel submitted that Dr. Kenny had dealt with the allegations of bias comprehensively from start to finish in his affidavit.

25. With regard to the issue of objective bias, Counsel submitted that this Court should take all the facts into account and that these should be put in the proper context. The facts relied upon by Counsel were as follows:-

26. With regard to the legal principles applicable to a case such as the instant case, it was submitted by Mr. Cush that first of all different standards are expected of a judicial body to an administrative body and that with regard to the correct test the law differs in this jurisdiction to that in England and what were relevant were the cases dealing with pre-judgment issues. Counsel referred the Court to the decision of the Supreme Court in the case of O’Neill -v- Beaumont Hospital Board , [1990] I.L.R.M. 419 at 438 where the Court stated that the proper standard to be applied was whether a person in the position of the applicant who was a reasonable man should apprehend that his chance of a fair and independent hearing of the question does not exist by reason of the pre-judgment of the issues which are involved in that by the members of the Board. At page 439 of the report Finlay CJ stated as follows as to what the appropriate test in a case such as this is:-

27. Finlay CJ stated further at page 439:-

28. This test was applied again in the case of Dublin Well Woman Centre Limited -v- Ireland , [1995] 1 I.L.R.M. 408 and more recently in the case of Bane -v- Garda Representative Association , [1997] 2 IR 449.

29. Having regard to the applicable law, Mr. Cush addressed the facts of this case to the submissions made by the applicant. Mr. Cush queried whether a reasonable man will apprehend bias in circumstances where the one issue raised, namely, that of drugs, was but one issue in a myriad of issues arising in the consideration of the Respondent. It was submitted by Counsel that far from the letter of the 22nd September being "redolent of an animus" to quote the words of Counsel for the Applicant, this letter in fact did not show any concluded view, but rather a questioning mind. The question raised was whether the information referred to was relevant at all to the consideration of the Commission. It was submitted that this letter was an indication of the thought process of Dr. Kenny and that the thought process was the very opposite to a pre-judgment in the particular case. Counsel submitted that for this letter to create the impression that Dr. Kenny had prejudged the Applicant’s submission would, to put it in the words referred to by O’Flaherty J in the case of McAuley -v- Keating , [1998] 4 I.R. 138 at 145, amount to a “monstrous charade”. Mr. Cush submitted that this letter indicated that Dr. Kenny was seeking advice and that this was wholly inconsistent with the pre-judgment on his part. He submitted that the idea of pre-judgment was inconsistent with the ongoing enquiry demonstrated in this letter. Counsel submitted further that none of the facts in this case show any bias on the part of Dr. Kenny or any member of the Respondent. With regard to the so-called “clarification document”, that is the document created by Dr. Kenny between the 6th and 11th October, 1999, Counsel submitted that this document must be examined in its entirety.

30. With regard to the allegation of breach of the principles of natural justice, Counsel for the Respondent, while accepting that the Respondent must follow fair procedures, submitted that on the evidence the Applicant’s case must fail on this ground also and in particular with regard to the fact that the evidence shows that no matter was taken into account without Storm FM being given an opportunity to deal with it.

31. On behalf of the Notice Party Mr. Mohan, S.C., submitted that if Dr. Kenny was prejudging the matters as contended for by the applicant that he would not have gone back to the Gardaí in a manner disclosed to enquire into the matters raised by him. It was submitted by Counsel that this clearly demonstrated that Dr. Kenny was still enquiring into the position of the applicant and into the process. It was further submitted by Counsel that the clarification document created prior to the meeting of the 11th October demonstrated Dr. Kenny’s thought process and the fact that he considered that there was no compelling reason for him to be swayed in any manner other than that as advised by the chairman at the meeting on the 22nd September, 1999. Counsel referred to the relevant considerations arising under the Radio and Television Act, 1988 and in particular Section 6(1) of the Act dealing with the character of the applicant and of its directors in the context of the applicant being a corporate body. Counsel submitted that no single conclusion of bias could be drawn from the facts taking all of the matters as a whole.

32. In reply to the submissions of the Respondent and the Notice Party, Mr. Paul Gardiner, of Counsel, indicated that the parties were in agreement as to the applicable law and the appropriate test to be applied, namely, with that outlined by Finlay CJ in the case of O’Neill -v- Beaumont Hospital . Counsel submitted that if there was any ambiguity the Court should take the more favourable view to the applicant. It was further submitted by Counsel that insofar as the test to be applied is an objective test that this Court cannot look at the purpose of the creation of the documents in question but must examine the documents themselves on their face. Counsel submitted that insofar as this Court must have regard to all the circumstances of the case that these circumstances must include the circumstances regarding the swearing of the affidavit of Dr. Kenny. It was submitted that the first essential fact was that before any consideration was reached by the Commission that Dr. Kenny had formed a view about the POD nightclub.

33. Dr. Kenny was cross-examined briefly in the context of these proceedings and, suffice it to say, he clearly indicated that he bore no personal animosity towards Mr. Reynolds and was in no way personally biased towards him or towards the consortium of Storm FM in regard to the application to the Respondent. This the Court clearly accepts and in fact it was not seriously put in question. What is at issue is the allegation of objective bias and breach of natural justice raised by the applicant. The question that must be asked is whether a person in the position of Storm FM or its chairman, Mr. Reynolds, being a reasonable man might reasonably fear that there was pre-judgment expressed by Dr. Kenny which would prevent a fair and independent hearing of the application for the radio licence made by Storm FM. I am satisfied on the evidence before this Court that Dr. Kenny was engaged at all relevant times prior to the meeting of the 11th October in clarifying what he considered to be relevant matters in the context of the applications before the Commission rather than rely upon newspaper reports and other rumours which came to his attention. Dr. Kenny sought to clarify certain matters with members of the Garda Síochána. These matters were not simply related to Mr. Reynolds and his nightclub but related generally to the issue of drugs in the Dublin area. Insofar as he raised with the Gardaí matters arising from earlier press reports involving the POD nightclub, he did so in an enquiring fashion and had he not done so in light of the information which was then in the public domain certainly a situation may well have arisen whereby a danger of pre-judgment could have occurred. I am satisfied that he engaged in a legitimate enquiry with the Garda Síochána, that the matters are clearly documented by him in the letter of the 22nd September, 1999 to the Chairman and in the further "clarification document". I am satisfied that these documents indicate first of all that Dr. Kenny was raising with the chairman issues as to what was relevant in the context of the deliberations of the Respondent Commission and had not prejudged the issue and furthermore insofar as he raised further queries with the Garda Síochána and prepared the further clarification document that this again did not demonstrate any pre-judgment of the issue on his part. It is important to bear in mind the words of Murphy J in the Dublin & County Broadcasting Limited case where on page 13 he stressed that the question of bias must be determined on the basis of what a right-minded person would think of the likelihood of prejudice and not on the basis of the suspicion which might dwell in the mind of a person who is ill-informed and did not seek to direct his mind properly to the facts. I believe that a person relying simply on the newspaper report published in the Sunday Tribune would not have in his possession all the relevant facts in this matter and would constitute a person who, if they sought to make any judgment on those facts alone, would be ill-informed in relation to the relevant facts. As stated by Murphy J., the crucial part of the test must be the approach of a right-minded person to the facts and circumstances of the case. I am satisfied that the circumstances of the case must be ascertained from all the facts. These facts have now been put before this Court and on the basis of these facts I am satisfied that no right-minded person would conclude that there was any real likelihood of bias on the part of the Respondent in its consideration of the application for the licence made by the applicant, Storm FM. Accordingly, I will refuse the applicant the relief of Certiorari which was sought in these proceedings.