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Cite as: [2002] IEHC 72, [2003] 1 ILRM 106

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Eircom Plc. v. Director of Telecommunications Regulation [2002] IEHC 72 (28 June 2002)

THE HIGH COURT

JUDICIAL REVIEW

2001 NO. 539 J.R.

BETWEEN

EIRCOM PLC

APPLICANT

AND

THE DIRECTOR OF TELECOMMUNICATIONS REGULATION

RESPONDENT

ESAT TELECOMMUNICATIONS LIMITED, AND,

NEVADA TELECOM

NOTICE PARTIES

Judgment delivered by Mr. Justice Herbert the 28th day of June, 2002.

1. The Applicant in this Application for Judicial Review is Eircom Plc and the Respondent is the Director of Telecommunications Regulation. By a letter dated the 11th October, 2001, Esat Telecom was advised by the Solicitors for the Applicant that by Order made on the 30th July, 2001 the Applicant had been granted leave to apply by way of Judicial Review for an order of certiorari quashing the decision of the Respondent directing the Applicant to charge, as interim prices, those prices specified in Decision Notice D.A./01 (O.D.T.R. 01/24), published on the 24th April, 2001. By Order made the 3rd December, 2001 Esat Telecom, and by Order made the 17th December, 2001 Nevada Telecom, each on their own Application, were joined in the matter as Notice Parties. It appears from the terms of a letter dated the 11th October, 2001 from Eircom Plc to Esat Telecom that an undertaking was given by Counsel on behalf of Eircom Plc to the High Court on the 9th October, 2001 to inform Esat Telecom of the existence of the Application for Judicial Review. The Court was not informed as to whether a similar undertaking was given with regard to Nevada Telecom.

2. Both Notice Parties contend that their rights would be materially affected by the avoidance of the decision sought to be impugned by the Applicant. Counsel for Eircom Plc informed the Court that Eircom Plc did not oppose the Application of Esat Telecom but without prejudice to any issues as regards costs, but did strenuously oppose the Application of Nevada Telecom. For reasons which do not concern the Court there is no longer a matter of dispute between the Applicant and the Respondent. Accordingly an Application was made to the Court by the Applicant with the consent of the Respondent to strike out the proceedings with no Order as to costs in favour of the Applicant or the Respondent. Both Notice Parties sought an Order for costs.

3. What is the position of the Notice Parties? At page three of the ruling of the Supreme Court delivered extempore on the 14th April, 2000 by Keane C.J., on behalf of the Court in the case of Spin Communications trading as Storm F.M. -v- Independent Radio and Television Commission it was held as follows at pages two and three of the judgment:-

“This is a case in which the Notice Party, as indeed the High Court Judge accepted, is a party with a vital interest in the outcome of the matter. As Chief Justice Finlay said in the O’Keeffe -v- An Bord Pleanála case, where you have a party such as the Notice Party in the present case who is vitally interested in the outcome of the proceedings, they must be joined as a party and will be joined by the Court if the Applicant does not join them. In those circumstances, it seems to me that once the Notice Party is there, once he is in the proceedings protecting his interests, he may find himself in precisely the same position as the Respondent. He may find himself in the position that he has been there, of necessity, to protect his interest to advance arguments that may not have been advanced by the I.R.T.C. and to have had the benefit of his own Counsel and Solicitor to protect his interest. It would be quite unjust that he should have to pay his costs because the Applicant company has no assets, where he has been brought there as a necessary party.

I am very far from setting down any general rule because it is always a matter for the High Court in the exercise of its discretion to decide whether a party is entitled to costs at the end of the hearing. But there appears to be nothing in the present case to suggest that if the I.R.T.C. and the Notice Party are successful in these proceedings they would not both be awarded their costs as both having a vital interest in the outcome.

In those circumstances I am satisfied that the learned High Court Judge was in error in holding them not entitled to costs and I would allow the appeal and order security for costs to be furnished in the same amount as was ordered in the case of the I.R.T.C.”

4. I am unable to accept the submission by Counsel for the Applicant that the Applicant was entitled to proceed against the Respondent alone and should not be fixed with the costs of parties whom it did not seek to join in the matter and whom, Counsel argued, voluntarily sought to be joined in the Application for Judicial Review so as to advance or protect their own interests. Only in a very general sense may it be stated that a litigant, “cannot be compelled to proceed against other persons whom he has no desire to sue”, [Dollfus Mieg et Compagnie S.A. -v- Bank of England, (1951) Ch., 33]. Under its inherent jurisdiction and under the Rules of the Superior Courts 1986, [for example Order 15 and Order 84 Rule 22 (6)], the Court has extensive powers to join or to hear additional parties or persons. As was stated in the case of Long -v- Crossley 13 Ch. D. 391 the purpose of these powers is not to ensure that the case is so framed as to be successful. The purpose is to prevent a multiplicity of proceedings and to ensure that all necessary issues and persons are before the Court to enable it, “effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter” [Order 15 Rule 13 Rules of the Superior Courts, 1986].

5. In the case of Gurtner -v- Circuit and Another (1968) 2 Q.B. 587 at 599, Lord Denning M.R., held as follows:-

“It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the Court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the Court achieves the object of the Rule [R.S.C. (U.K.) Ord. 15 r. 6 (2) (B)]. It enables all matters in dispute to “be effectually and completely determined and adjudicated upon” between all those directly concerned in the outcome.”

6. In the present case the Court in the exercise of its jurisdiction joined the Notice Parties in this Application and I was not informed that any terms were imposed as a condition of their being so joined. The Court reserved the costs of those Applications.

7. Order 99 Rule 1 (1) of the Rules of the Superior Courts, 1986, provides that:-

“Subject to the provisions of the Acts and any other Statutes relating to costs and except as otherwise provided by these Rules the costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.”

8. This discretion however must be exercised judicially and on the facts of each particular case, [see Hewthorn and Company -v- Heathcott, 39 I.L.T.R. 248].

9. The Application in the present matter has in effect been discontinued, but there was no submission that the Court should regard this as an acknowledgement of defeat by the Applicant [R. -v- Liverpool City Council ex parte Newman (1993) C.O.D. 65]. It appears to be common case that the “casus belli” disappeared through circumstances entirely outside the control of both the Applicant and the Respondent rendering otiose any further proceedings in the matter. In these circumstances it appears to me that the Court should approach the Application of the Notice Parties for costs by considering first whether their Applications to be joined in the matter and the steps taken by them thereafter were “reasonable” in all the circumstances [R. -v- Barnet London Borough Council ex parte Field, (1989) 1 P.L.R. 30 at 35 (Q.B.D.): O’Murchu -v- Claritheoir na gCuideachtai, (High Court O’Hanlon J., 20th June, 1988, unreported)].

10. Unhappily, very little evidence was made available to the Court on the hearing of this Application for costs. No Affidavits were filed in support of the Application. The legal representatives of the Notice Parties did not open to the Court the documents relevant to the Notice Parties being joined in the Application for Judicial Review. Though reference was made by them to Statements of Opposition and Affidavits verifying facts none were produced or opened to the Court. However, since the involvement of the Notice Parties in the matter appears to have arisen by virtue of the provisions of Order 84 Rule 22 (6) rather than of Order 84 Rule 26 (1) of the Rules of the Superior Court, 1986, and as they were successful in their Application to be joined, in the case of Nevada Telecom against the admitted strenuous opposition of the Applicant, I believe that I may infer that they each had a separate bona fide and material interest which was directly affected by the Application for Judicial Review so that they had a legal entitlement to be joined in the matter for the purpose of vindicating those interests. Once joined in the Application they were in my judgment at the very least obligated to set out the basis of their opposition to the Application in the form of an Affidavit. As the case was not argued I make no finding as to whether the provisions of Order 84 Rule 22 (4) would without the direction of the Court apply in such circumstances, and as the Order joining the Notice Parties in the matter was not produced I cannot know whether it directed that the provisions of Order 84 Rule 22 (4) should apply in this matter.

11. From such information as has been furnished to the Court, I do not consider that the case for Esat Telecom could reasonably and effectively have been made by Nevada Telecom or vice-versa, so that it would be unjust to award two sets of costs against the Applicant [R. -v- Industrial Disputes Tribunal ex parte American Express Company Inc., (1954) 1 W.L.R. 1118 (Q.B.D.)]. These entities are business competitors and it was not suggested by the Applicants that their objections amounted to a common opposition.

12. I am unable to determine what would have been the outcome of this Application for Judicial Review had the matter proceeded to a full hearing. In most such cases the unsuccessful Applicant for Judicial Review bears the costs of the Notice Parties, [Lancefort -v- An Bord Pleanála (1999) 2 IR 270: Scott -v- An Bord Pleanála (1994) I.L.R.M. 424: O’Keeffe -v- An Bord Pleanála (1993) 1 I.R. 39]. However, in the circumstances and on the information furnished to the Court on this Application it would not be possible to say whether or not the Applicant would have been successful in its Application for Judicial Review or whether or not it was reasonable for the Applicant to have sought Judicial Review.

13. I am satisfied, despite the paucity of the evidence, that both Notice Parties must be regarded as having acted reasonably in seeking to be joined in the Application for Judicial Review. At this juncture the Applicant could have reassessed the situation and discontinued its Application had it chosen so to do. I cannot say whether its determination to continue with the Application was a correct or an incorrect decision. In the circumstances which have arisen in this matter, in my judgment, the only way in which the Court may seek to do justice between the parties is to regard the Application of the Notice Parties to be joined in the Application for Judicial Review as an isolated matter. I believe that there is to be found a precedent for this approach in the case of Keane -v- An Bord Pleanála (1997) 1 I.R. 184.

14. The Applicant, as the Court was informed by Counsel for the Applicant, did not consent to, but did not offer any opposition to Esat Telecom being joined as a Notice Party but reserve its position as to costs. Counsel informed the Court that the Applicant strenuously opposed the Application of Nevada Telecom but was unsuccessful in its objection. In my judgment, as the Applicant in effect conceded the right in the one case and unsuccessfully opposed the Application in the other it should pay the costs of the Application in both cases. As to costs incurred after being permitted to join in the Application for Judicial Review these will be confined to costs reasonable and properly incurred in the preparation and filing of Affidavits setting out the basis of opposition or verifying facts and alternatively or additionally statements of grounds of opposition.

15. The Court will make no Order as to the costs of this Application.