Supreme Court of Ireland Decisions

1. I agree with the judgment handed down by the Chief Justice. In deference to the comprehensive arguments addressed to this Court I would wish to add certain observations. In so doing I would adopt the detailed history of the matter so clearly set out in the judgment of the Chief Justice and I would take advantage of the abbreviations, descriptions and references which he has made in his judgment.

2. To condemn as biased the decision of a judge or other decision maker involves two conclusions. First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly, that in relation to the particular decision the external factor operated so as to tilt the judgment in favour of the successful party. The distinction is crucial. The existence of the extraneous factor must be proved as a fact on the balance of probabilities: The operative effect of an impermissible factor (where it does exist) is presumed.

3. In most of the reported cases involving an allegation of bias against a judge (and under that heading I would include all decision making bodies) the existence of some extraneous factor relating to the circumstances of the judge is admitted or acknowledged. For example, in the leading case in this jurisdiction, Dublin Well Woman Centre Ltd .v. Ireland [1995] ILRM 408 it was immediately recognised that Ms Justice Carroll had acted as Chairperson of the Commission on the Status of Women so that the argument in the case, and the decision on it, turned on to whether that fact might affect the impartiality of the Judge or, more correctly, give rise to a perception of bias. Similarly in the leading English case of ex parte Pincohet Ugarte [1999] 2 WLR 272 the fact that Lord Hoffman had links with Amnesty International was not in dispute. The issue was whether that association might be perceived as affecting his judgment.

4. However, the proposition that justice should be blind and that the judge should be wholly untouched by extraneous considerations is not merely unattainable: it is undesirable. In Laird .v. Tatum 409 US 824 (34 L Ed 2d 50) Justice Rehnquist (as he then was) considered a motion to disqualify himself, under the appropriate US legislation, on the grounds of bias. The distinguished Judge conceded that prior to his appointment, and in his capacity as an expert witness, he had appeared on behalf of the Justice Department before Senate hearings and expressed views material to the issues in the case pending before him. Having explained that most Justices come to the Bench no earlier than their middle years and that it was therefore probable that they would have expressed views in different forums on constitutional issues he went on to say (at page 59):-

5. Rehnquist J referred to with approval extracts from the often quoted judgment of Justice Franck in In re JP Linahan 138 F2d 650: A particularly attractive passage from that judgment is in the following terms:-

6. The views expressed by Lord Bingham of Cornhill CJ in Locabail Ltd .v. Bayfield Properties [2000] 1 All ER 65 provide a more specific analysis of factors which might be thought to affect the decision of a judge but could not be classified as impermissible. Lord Bingham (at page 77 of the report) excluded the factors following:-

7. Having then identified a number of circumstances which would give rise to a suspicion or

8. It is unnecessary to express any view whether all the circumstances listed by Lord Bingham as being unexceptional would be similarly treated in this jurisdiction or whether, indeed, a comparable list here would be even longer. It is sufficient for the purposes of this appeal to emphasise that not all extraneous factors are fatal to the reality or appearance of impartiality in the exercise of the judicial function. Accordingly, a party asserting bias must prove, by appropriate evidence and to the required standard, not only the existence of a particular relationship, circumstance or factor but also that it falls outside the permitted limits.

9. In the present case the original plea of bias was addressed to the Director personally. It had been expressed in the Statement of Claim at paragraph 22 in the following terms:-

10. Those allegations were extended in particulars delivered by Orange but the forceful statement of the allegation was made by Counsel on their behalf in the course of the hearing when he said:-

11. That allegation was amplified in the course of a question addressed to Mr McQuaid (day 33, page 131, question 473) in the following terms:-

12. That was the case of bias on which the Plaintiff relied. Orange sought to substantiate this case by an analysis of the decisions made or conclusions reached within the competitive system established by the Director.

13. An isolated erroneous decision - even one made in the context of criticism of counsel for the unsuccessful party - is not evidence of bias. There is a clear distinction to be made between the combination of error and an unsatisfactory trial (as occurred, for example, in Gill .v. Connellan [1987] IR 541 and McNally .v. Martin [1995] 1 ILRM 350) and a biased judge delivering a biased judgment.

14. Of course a judge may in a particular case reveal an existing bias which should disqualify him from hearing certain cases. Berger .v. United States 255 US 22 provides an unhappy example of such a prejudice. The trial judge commented in the course of the hearing that “One must have a very judicial mind, indeed, not to be prejudiced against the German Americans in this country .... I know a safe-blower .... and as between him and this defendant, I prefer the safe blower”.

15. Furthermore no authority was cited in support of the proposition that bias could be inferred from a series of adverse findings in a particular case. Indeed some American authorities - which are of course based on a different jurisprudence - would suggest that such a procedure lacks validity. In National Labour Relations Board .v. Pittsburgh SS Co 337 US 656 a hearing officer found the witnesses for the company untrustworthy and those for the union involved reliable. The NLRB adopted the finding of the examiner and the Court of Appeal upheld the conclusion that this fact alone showed undue bias. The Court of Appeal said (167 F2d 126, 128-129):-

16. That decision was reversed by the Supreme Court (337 US at 659) which expressed its judgment in terms, with which I would agree, as follows:-

17. Efforts have been made - again in the United States - to prove bias by reviewing judgments given by a particular judge over a period of time. In Grant .v. Shalala 989 F2D 1332 the refusal of a claim for disability benefit was appealed to Administrative Law Judge Russell Rowell who upheld the refusal. That decision in turn was appealed to the Court of Appeal and, at that stage, the claimant purported to extend her appeal to a class action on behalf of other persons similarly situated and contended that Judge Rowell was “inclined in every disability case to deny benefits: he uses his discretion to determine credibility to effect this bias against claimants” .

18. The District Court held that it could not conduct a trial in relation to that allegation of bias. However the social welfare agency itself conducted a detailed examination of more than two hundred of the cases heard by the administrative judge in question and concluded that the charge of bias was generally unfounded. That case illustrates the difficulty in establishing an unacceptable predisposition in a judge to a particular viewpoint as distinct from the fact, which would be self evident, that he had decided a particular issue on several occasions in favour of a particular party.

19. In the proceedings, both before the High Court and this Court, there was difficulty in segregating arguments based on bias on the one hand and unreasonableness on the other. Both arguments were necessarily intertwined. Even greater confusion was caused by the use of terminology which has been devised to explore the ramifications of bias where the existence of an extraneous factor had been proved or admitted. The concluding lines of that part of the judgment of the learned trial Judge dealing with bias (pages 173 and 174 of the transcript) demonstrate the error into which the learned trial Judge were led by the use of such terminology in this case. In that crucial passage the learned Judge said:-

20. In my view the fallacy of these conclusion results from the fact that the learned Judge used her findings, and the inferences which a reasonable person might draw therefrom, for two different purposes. First, to establish the existence of a unacceptable extraneous factor with the potential for influencing the decision of the evaluators and, secondly, the suspicion, belief or perception that such extraneous factors did, or might have, become operative in the instant case. The standard of proof of the existence of bias on the one hand, and its operation on the other, are very different. It is possible to suspect the unconscious operation of an extraneous factor but that does not prove its existence. Orange sought to prove the existence of an extraneous factor and its operation by the same evidence. In my view the evidence was wholly inadequate to prove the fact of bias - I hesitate to use the words objective fact of bias - and without that the reasonable observer could not prove its conscious or unconscious operation. To do so would be equivalent to a finding that the speech of Lord Hoffman in the Pinochet Case (above) was biased without any evidence or knowledge of his association with Amnesty International.

21. Evidence of the existence of a malign influence bearing on the judgment of the evaluators, or some of them, so as to sway themselves (and their colleagues) consciously or unconsciously, in favour of Meteor or against Orange is slight indeed. The evidence to the contrary is, in my view, overwhelming. AMI were selected themselves by a competitive process. They clearly have a very high reputation in the specialised field in which they practice. No case was advanced to explain a distaste by the Danish evaluators for British companies or preference for American ones. The actual evidence given by the four evaluators who gave evidence, including Mr Anderson, was a comprehensive denial that any conclusions reached or decisions made were based on a preference by any of the adjudicators for one competitor as against another. It is incomprehensible to me how a perverse influence could operate, as has been suggested, so as to affect the judgment of the highly qualified and apparently independent Irish evaluators. Above all, a comprehensive analysis of the exercise in which the evaluators were engaged does not support the view that any anti-Orange force was at work. The reality is that of the sixty-seven indicators in respect of which marks were allocated Orange challenged fifty. Of those twenty-seven were pursued before Ms Justice Macken but only six were upheld.

22. There is too an inherent conflict in the evidence adduced in support of the contention of bias. In allocating marks and weighting to the crucial indicator of “commitments and price development” the evaluators in fact drew maximum attention to what they were doing and the higher - probably decisively higher - marks that they were awarding to Meteor over Orange when an alternative and equally acceptable course would have concealed that fact. On the other hand it is suggested that additional marks were allocated to Orange and that reports were “sanitised” with the conscious intention of concealing the existence of bias which had been identified by other evaluators. Whilst the evaluators like any other judges, umpires or examiners may have fallen into error - and I am by no means convinced that they did - I am quite satisfied that the evidence does not establish that any of the evaluators were biased less still that such bias operated effectively or at all. If bias neither existed nor operated then any perception of it is necessarily misconceived. The express allegation of corruption against Mr McQuaid - and that is what it was - and the implied allegation of naiveté against the other Irish evaluators are wholly unwarranted.

23. Whilst I disagree reluctantly with the conclusions reached by the learned trial Judge having regard to immensity of the task which was imposed upon her and the diligence with which she performed it, I find myself forced to do so.

24. I would dismiss the appeal for the foregoing reasons and more particularly those set out in the judgment of the learned Chief Justice.

25. Currently there are two licensed mobile telephone operators in this jurisdiction namely Eircom and Esat. With a view to increasing competition in the telecommunications area the first-named Defendant, the Director of Telecommunications Regulation ( “The Director” ) decided to license a suitable third operator. Having regard to spectrum and other problems it was decided that for the time being at least there should only be one additional operator. Initially quite a number of consortia showed interest in possibly applying for the licence and requested sight of the relevant documentation etc. Ultimately, when the matter was put out to tender there were only two applicants, the Plaintiff and the second-named Defendant. As the tender documents made clear the Director had decided to award the licence on foot of a competition. The type of competition envisaged is generally known as a “beauty contest” . This is in contrast to the auction type competition. What it means is that the competition is not necessarily won by the highest financial bidder but numerous criteria are taken into account, marked and weighted so as to discover the most overall suitable applicant. It was made clear in the tender documents that the Director was not bound to award the licence to the winner of the competition and indeed it was envisaged that there would be discussions between the Director and the winner before any final decision was made as to the award of the licence. The parties tendering were given advance notice of the general group headings (described as “groups”) on foot of which the applications would be considered and the individual group weighting. There were five groups in all described as marketing (38% weighting) technical (27% weighting) financial and management (20% weighting) charges (10% weighting) and guarantees (5% weighting). The tenderers were also informed of the dimensions to be considered within each group and these were given in descending order of importance. Thus in the marketing group the dimensions were tariffs, marketing strategy and services. In the technical group, the dimensions were network quality, acquisitions of sites etc. and environmental issues, and coverage. In the financial and management group the dimensions were solidity and sensitivity and experience/expertise. There were no separate dimensions for the charges group and the guarantees group. Weightings were given to these dimensions and in some instances for this purpose the dimensions were divided into sub-dimensions. The weightings given to the dimensions and sub-dimensions were not notified to the tenderers. After the tenders were opened and read different aspects of each dimension or sub-dimension were isolated and described as indicators. These were each given a marking on a scale from A - E and after the marking was done each indicator was given a weighting. After the marks were added up and the appropriate weightings applied the second-named Defendant emerged as the winner of the competition.

26. A firm of expert consultants from Denmark called Andersen had been engaged by the Director to process the competition alongside members of her own staff. Different working groups were formed to evaluate the rival tenderers in respect of particular topics. The composition of these various working groups differed but they consisted of members of the Director staff and of Andersens. The reports and preliminary evaluations of these working bodies were considered by an overall body and further cross checking exercises were carried out. Ultimately a final evaluation report was prepared for the Director. This is a brief summary of the factual background, a much more detailed account is to be found in the judgment of the Chief Justice.

27. Under the relevant legislation, if the Director is of a mind to refuse a licence to a particular applicant, she must notify such applicant of her proposal so to do and give reasons. The losing applicant has then an opportunity under the Act to put forward reasons why the Director should not make a decision to refuse the licence to that applicant. It is the contention of the Defendants that that procedure was carried out in this case but the Plaintiff maintains that no or no adequate reasons were given. Be that as it may submissions were made to the Director by the Plaintiff and the Director made a final decision refusing to grant the licence to the applicant. Under the Act reasons must be given with the refusal. The purported reasons given were that the Plaintiff was not the winner of the competition and that successful discussions had ensued with the winner. The Act gives a right of appeal to the High Court to a party refused a licence. Ireland as a member state of the EU was obliged to grant such a right of appeal pursuant to an EU directive. Neither the directive nor the domestic legislation specifies the type of appeal envisaged and this is a most important aspect of the case as will clearly emerge later on in this judgment.

28. The Plaintiff duly appealed and the appeal was heard over 51 days by Macken J. in the High Court. She delivered Judgment on the 4th October, 1999 annulling the decision to grant the licence to the second-named Defendant and remitting the matter back to the Director for further consideration. The Defendants have appealed to this Court from that decision. The Plaintiff has cross-appealed on two matters to which I will return.

29. The Plaintiff’s appeal to the High Court was essentially on three grounds.

30. I will treat each of these separately and in turn as far as possible though there is overlap between the allegations of bias and the allegations of unreasonableness. The case on bias is a most unusual one. What was suggested was that the evaluators made so many erroneous decisions all one way, that is to say, against the Plaintiff, that there must have been bias on their part and that therefore in a vicarious sense there was bias on the part of the Director. It was accepted by all parties that on the issue of bias fresh oral evidence could be given but the learned High Court Judge ruled that on the issue of reasonableness (an expression which will be explained later in the Judgment) no fresh oral evidence was admissible save and except such evidence as the Judge herself might require presumably at the suggestion of a party, it being an adversarial system of justice. One of the two grounds of the cross-appeal is that this exclusionary rule laid down by the Judge was wrong. But what further complicated matters was that the Judge herself conceded that there was considerable overlap between the issue of bias and the issue of reasonableness and that it might not be possible for her totally to exclude from her mind in dealing with the issue of reasonableness the oral evidence she might have heard in relation to bias.

31. No authority was cited in the High Court or in this court expressly supporting the proposition that bias whether it be so called actual bias or apparent bias could be established by proving cumulative error all one way. This appears to be acknowledged by the learned High Court judge in that at page 168 of her judgment she observes that “the law relating to bias is reasonably well developed in this jurisdiction, although no case law has been opened which is directly applicable to the Orange claim made here”. There follows the famous quote from Lord Hewart’s judgment in R.v. Sussex Justices ex parte McCarthy [1924] IKB 256 at 259:-

32. Due possibly to a word processing error the impression is given at first sight from the judgment of the High Court that Lord Hewart went on to observe that:-

33. In actual fact that quotation is from the judgment of Denham J. in Dublin Well Woman Centre Limited v. Ireland [1995] I ILRM 408 and is again mistakenly attributed to the Ex Parte McCarthy case at page 170 of the High Court judgment. The learned trial judge seems to have arrived at her conclusion that evidence of cumulative error one way can be proof of bias from nothing more than the simple observation that bias “may take a variety of forms” . It is quite clear however when one reads the full quotation from the judgment of Denham J. that she was merely pointing out that there are different

34. What the authorities seem to have established is that there are in effect three different situations where bias may arise.

35. It is not necessary in this case to consider whether there are any nuances of difference between the Irish case law and English case law and especially it is not necessary to consider the problems which have bedevilled the English cases as to whether one should speak of danger of bias, suspicion of bias or possibility of bias. Lord Bingham goes on to give examples of what would not be considered bias and examples of what could be so considered. The Lord Chief Justice points out that it would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias, that everything will depend on the facts which may include the nature of the issue to be decided. He goes on to say however that the Court could not conceive all circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the Judge. He goes on to say at p.77:-

36. On the other hand the court considered that:-

37. I have deliberately listed in full the instances given by Lord Bingham of situations where normally bias would not be held to exist on the one hand and situations where bias would be held to exist on the other hand. I have done this with a view to demonstrating the type of situations which are envisaged. In every single instance Lord Bingham is talking about some outside fact which could conceivably be seen influencing the judge. There is not the slightest suggestion that bias could ever be established as a consequence simply of the decisions of the judge.

38. I fully appreciate that the applications before the Court of Appeal all arose out of Courts or Tribunals having to act judicially but as far as the meaning of legal bias is concerned I do not think that there is any material difference between Courts and administrative bodies except of course as has been pointed out in a number of authorities, an administrative body may have some prior knowledge of the matters upon which it is adjudicating which a Court will not. But in neither instance can bias be proved simply from the nature of the decisions.

39. If I am right in the view which I have taken on the meaning of bias in law (which as Denham J. pointed out in the Dublin Well Woman Centre case may not necessarily correspond with the ordinary dictionary meaning) it is strictly speaking not necessary for me to comment on the separate instances of decision making on the part of the evaluators in respect of which the learned High Court judge found bias. But I think that in fairness to the Director who has clearly brought this appeal with a view among other things of overturning the inferences drawn against her and her staff and agents I should express my view on each of the matters concerned especially as I have come to the conclusion that even if the learned High Court judge had been justified in her view that cumulative decisions one way could amount to legal bias, she was in fact wrong in the inferences which she drew. In other words, even on that extended meaning of legal bias which I do not accept, such bias cannot be established. I now intend to deal in turn with each of the instances of bias found by the trial Judge. I find it useful in this connection to adopt the headings contained in the list of allegations on bias handed into the court by counsel for the Director. I will also follow the order in that list which is the order followed by the trial judge.

40. It was argued on behalf of the Plaintiff in the High Court that this passage meant that the Plaintiff was not really proposing a new independent network for the state and that any network established would be simply part of the UK network. The learned High Court judge accepted this argument and included that passage in the report as evidence of bias. I find myself unable to agree with the learned High Court judge that the passage in question is open to the construction she has put on it and still less can I agree that any inference of bias can be drawn from its formulation. I read the passage as neutral and value free but if anything the implied reference to a link with the networks in Great Britain and Northern Ireland seem to me to be a plus factor in favour of the Plaintiff. As is pointed out in the written submissions on behalf of the Director the passage itself refers to “network in the Republic of Ireland” . The Evaluation Report frequently refers to the “network” proposed by Orange. I find myself in agreement also with the other arguments put forward by the Director. One important point is that the UK network was at DCS1800 network only. The licence to be granted in Ireland pursuant to the competition was a combined GSM 900/DCS 1800 network. In my view therefore the learned High Court judge was incorrect in the construction she put on the passage and was also incorrect in drawing any inference of bias from it.

41. This is another minor matter to which the learned High Court Judge appears to have attached quite an amount of significance. It has been argued and I think correctly on behalf of Orange that there was no inaccuracy in its tender document as of the time it was written and that the relevant statement in the tender related to the nature of the application made in Belgium and not the actual licence granted. Other arguments have been put forward also but I do not intend to review these in detail. Insofar as the evaluators in the report refer to any alleged inaccuracy in the Orange application it has been described in the report itself as a “minor discrepancy” . I cannot conceivably see how that could be evidence of bias. For the reasons explained clearly in Orange’s written submissions there is no evidence of any intention to deceive on the part of Orange. At p.71 of the Appendix to the Evaluation Report the evaluators after referring to the so called “minor discrepancies” go on to observe:-

42. This is hardly evidence of bias.

43. I will adopt the learned High Court judge’s own summary of what the problem was here. She sets it out as follows:-

44. The Judge goes on to observe that Orange was awarded a “B” and Meteor “C”. The Plaintiff complained that there should have been a much bigger differential in its favour because under the entry “Bonus to Distribution Channels” the Plaintiff’s figure was much higher than Meteor’s. It emerged from the evidence however that the position was not as simple as that. The evaluators appear to have been puzzled at the substantial discrepancies in figures between the two applicants and as a consequence of questions sent to Meteor, discovered that Meteor had included all personnel costs under line 48 of Table 7.11 of the mandatory tables, the heading for that line being “Personnel and Social Security Costs”. Marketing Costs which were also employee costs were therefore included in that line. Orange by contrast had included staff costs in its marketing budget. In addition therefore to the figures given by Meteor for “Marketing costs” and “Bonus to Distribution Channels” respectively the evaluators added in an estimated figure for Meteor’s staff costs in marketing. Once that was done the gap tended to close. An issue did arise as to how to factor in handset subsidies. These were not mentioned as such in the Meteor tender document but it was taken for granted that handset subsidies would be a feature of the business. The evaluators made the assumption which they regarded as a reasonable assumption that handset subsidies were reflected in the indicators “Bonus to Distribution Channels” and “Advertising and Branding”. It may well be that experts could agree or disagree with the approach adopted by the evaluators but there was absolutely nothing to indicate bias. Furthermore Orange was given credit for having a higher figure under pure bonus to distributions. To put the matter into perspective it is relevant also to mention that the bonus to distribution channels indicator carried 0.8% of the overall marks of the competition.

45. In terms of the effect on the overall marking the complaints of Orange in relation to tariffs are by far the most serious. They are summarised by the trial judge in her judgment at p.62 as follows-

46. At this point in the judgment it is perhaps important to recall that only the overall group weightings were known to the applicants before tendering. The applicants at the pre-tender stage however were aware of the dimensions in descending order of importance under each group. The group weighting for marketing was 38% and the dimensions in descending order of importance for the marketing group were tariffs, marketing strategy and services. It is also important to recall that the 38% was by far the highest weighting within the groups. Each applicant before tendering would have been aware that tariffs was the most important dimension within that grouping. Section 3.4 (g) of the tender document made it clear that the tenderers were expected to make binding commitments on tariffs and price development. The sub-paragraph read as follows:-

47. I agree with the observations contained in the Director’s written submissions that the trial judge unjustifiably down graded the importance of this sub-paragraph apparently taking the view that it was some kind of last minute addition which did not fit in with the syntax of the document. Even if that were so, I do not think it would be justifiable to lessen its significance on this account. The fact is that in the final tender documents the proposed tenderers had due notice that binding commitments on tariffs were expected. The evaluators took the view on the basis both of the respective tenders and the replies to questions put to Orange that Meteor had given binding commitments and Orange did not. Indeed Orange expressly said the following:-

48. From other statements of Orange it was also clear that no binding commitments were being given. To the charge that Orange did not give any binding commitments on tariffs Orange principally relies on two quite distinct answers. In the first place Orange points out that there was a mandatory table 7.8 which was intended to contain their expectations of the development in their maximum tariffs, and they argue that any refusal to give binding commitments would not have applied to that table. But even Mr. Collins, Counsel for Orange, admits that there could be ambiguity on the documents. In my view the evaluators cannot be criticised for taking the view that there were no binding commitments on tariffs whatsoever from Orange and since that was a perfectly reasonable view to take I cannot see how it could be construed as bias even if the extending meaning of bias contended for was correct in law. But Orange makes a second point in response to the allegation of no binding commitments. The tender documents gave the Director the right to convert proposals made in the tender documentation into conditions attached to any licence which was given. It has been consistently argued by Orange that because of this right given to the Director it is immaterial from an evaluation point of view whether binding commitments were given expressly or not. Any proposals could be converted into conditions and the end result would be the same. That view was put forward throughout the trial in cross-examination of the Director’s witnesses and the witnesses from Andersens. These witnesses made it clear that they did not view the position in that way. As far as they were concerned the evaluation was one stage in the process and the question of what conditions were to be attached to the licence was a different process to be carried out at a later stage. Furthermore, it is clear from their evidence that they would have doubts as to whether tariff proposals by Orange could be converted into conditions in circumstances where Orange had expressly stated that no binding commitments were being given. It is probably true that this point was not seriously considered at the relevant time in that the Director’s staff and Andersens who were engaged in the evaluation process quite clearly took the simple and straight forward view that whereas the tender documents had envisaged commitments on tariffs, no such commitments were given by Orange and Orange had to be penalised in marks on that account. I see nothing wrong in that view or certainly nothing irrational or biased in it. It was a perfectly tenable view to adopt both in law and in fact. I am satisfied therefore that the evaluators were entitled to mark Orange unfavourably in respect of binding commitments on tariffs.

49. However as is clear from what I have already stated, this is not the only complaint of Orange in relation to tariffs. Orange makes a distinction between low and lower tariffs and claims that it had no notice that the evaluators were looking for what it calls “the lowest tariffs” as opposed to merely competitive tariffs. The simple answer to this objection is that there is no real evidence to support the view that anything other than competitive tariffs was being looked at. The information memorandum which was published at the launch of the competition made it clear that the overall objective of the tender competition was “to increase competition and choice so that the Irish consumer benefits from lower tariffs and the availability of high quality services...”. Of course the mere statement of policy in the pre-tender documents does not necessarily mean that the evaluators did not look for a low cost operator. However Mr. McQuaid of the Director’s staff involved in the evaluation in evidence stated that there was no policy decision to go for a low cost operator and I do not think that there was anything in the evaluation of the tariffs which would justify the view that there was some departure from the stated policy of looking for competitive tariffs, still less of course was there any evidence of bias.

50. The next allegation under this heading has caused me some concern. The methodology adopted by the evaluators in the competition was that the marking on the A - E system was carried out in respect of each of the indicators before the weighting was attached to such indicator. Furthermore the tenderers were given no information as to what the indicators were. It turned out that one of the indicators was “commitments and price development” . In the marking in respect of that indicator Meteor was awarded a B and Orange was awarded an E. It was then decided that that indicator would be given the substantial weighting of 45%. Given that the group weighting for marketing was 38% and that the tariff dimension weighting within that group was 20%, the 45% was tantamount to 9 marks out of 100. It is not seriously in dispute that the evaluators would or at least ought to have realised that in applying a weighting of 45% they were in effect determining the outcome of the competition. On that weighting Orange was going to be the loser. It is important to reiterate that the trial Judge did not suggest actual deliberate bias in this connection. If I am correct in the view of the law on bias which I have already given this means that the question of bias under this heading does not arise though of course unreasonableness might be a different matter. But if the view of the trial Judge on bias was correct it would be necessary seriously to consider whether such bias could be found in the way that the indicator was dealt with. At one stage I had some doubts about this but I have come to the conclusion that it was part and parcel of the evaluation system that the indicators and weightings for them would be determined in the light of seeing the tenders. Essentially the exercise was looking at the tenders and comparing them. If marks were going to be given on foot of that comparison then these sub-headings had to be isolated, but that could only be done in the light of the tenders furnished. If there was one significant aspect on which one applicant was clearly ahead of the other, it was reasonable to apply a substantial weighting and it was particularly reasonable to do so if there was going to be a separate heading of “commitments and price development” as distinct from simply spreading this aspect among the other indicators. In all the circumstances, therefore I do not think the evaluators can be criticised. The learned Judge even on her own view of the law of bias was incorrect in finding bias.

51. The background to the finding of bias under this heading was as follows. Orange in its tender made it clear that its packages would be bundled packages only, that is to say contractual arrangements under which there would be a certain number of free calls. Furthermore the packages would involve twelve month binding contracts with a break clause subject to a penalty with a view to recouping Orange for the handset subsidy. By contrast Meteor was totally silent as to contractual arrangements and did not indicate that there would be any penalty for termination of contract. Furthermore Meteor proposed in addition to bundled packages an unbundled package. In the course of the evaluation, the evaluators did not question Meteor as to what, if any, would have been its contractual arrangements and as to whether there would have been a penalty for early termination. While Mr. McQuaid conceded in evidence that with hindsight this might have been a mistake, it was argued on behalf of the Director that it was important that probing of the tender should be kept to a minimum so as to prevent applicants “mending their hands” as it were. The evaluators were not overly impressed by either tender in relation to “Subscriber Contracts” but Meteor was awarded a C and Orange a D. The learned trial Judge is highly critical of the evaluators in not probing Meteor further and in its making assumptions that the Meteor bid was free of twelve month contracts and free of penalties. I think that it was open to her and indeed she was fully entitled to be critical of these aspects of the evaluation. But insofar as errors were made they could not be tantamount to or evidence whether cumulative or otherwise, of bias for the reasons already indicated. Insofar as the trial Judge was critical of particular language used, the suggestion being that this displayed some bias against Orange, I cannot agree. Furthermore it was certainly open to the evaluators to give credit to Meteor for having an unbundled package. The indicator “Terms of Subscription” accounted for a very small part of the overall marketing in the competition. Insofar as these issues arise again under the heading of reasonableness I will return to them in due course.

52. The allegation under this heading is that the report by its language seem to favour what it saw as an Irish/American bid in the form of Meteor as distinct from what it saw as an English bid in the form of Orange. As this was an international competition pursuant to a European Union Directive, nationalistic preference would be wholly illegal. The phrase “The Irish Touch” is a most unfortunate one because it is undoubtedly open to ambiguity. As the trial judge has pointed out the phrase is found in the section of the report dealing with the philosophy behind the application of Meteor and is made in the context of an alliance with An Post. Under the heading “The Basic philosophy behind each application” the following words appeared.

53. The evidence on behalf of the Director however was to the effect that the use of the phrase “The Irish Touch” referred only to the type of local knowledge which the applicant might have and not the nationality of the applicant as such. The trial Judge took the view that the evidence of the witnesses on behalf of the Director were in conflict with the actual wording in the report. But I think that the wording in the report, while it might be open to different interpretations, was certainly open to the interpretation put on it by the Director’s witnesses. The proposed arrangements with a well known semi-State body with branches all over the country such as An Post, was arguably a plus factor for Meteor and this had nothing to do with any nationalistic concern. The trial judge coupled this reference with the “one network” reference to which I have referred earlier on in this judgment and expressed the view that this bolstered the case of bias on a nationalistic basis in favour of Meteor. But with the greatest respect to the trial Judge I cannot see that this is justified. I would reject any finding of bias on this account.

54. The learned trial judge made it clear in her judgment that she was making no finding of actual bias on the part of the evaluators against Orange. As would be normal following on reconsideration, drafts of reports were altered before a final version of the evaluation report was prepared. The judge has imputed sinister motives for this which with respect to her if true would seem to be tantamount to actual bias. But the nature and context of the alterations complained of could not in my view constitute or raise inferences of bias whether actual or apparent. I do not intend to go into all the factual background in detail but the first of the main allegations in relation to alterations in the draft reports, is in respect of the indicator “guarantees from backers” which at any rate attracted a very small percentage of the total marks. Originally the evaluators had awarded a D to Orange and an E to Meteor. Ultimately this was altered to an award of C to Orange and a D to Meteor. The sinister allegation which is made is that Meteor could not be allowed to be shown to have an E in such an important financial indicator as “guarantees for backers” and would probably not be awarded the licence on this account. Accordingly both competitors were lifted up as it were. There is no evidence whatsoever to suggest that if Meteor had got an E under this indicator it would not have been granted a licence. But at any rate there is no evidence of any such motive nor could any inference be drawn of some kind of bias whether actual or apparent in this direction.

55. The second main allegation relates to the alterations in the draft reports in relation to “financial strength of consortia members” . The relevant text in the original draft report read as follows:-

56. The final text is in the following terms.

57. What is particularly strange about this allegation is that the final text had the effect of increasing Orange’s score while leaving Meteor’s the same. It is very difficult to understand why the learned High Court judge rejected evidence given on behalf of the Director as to why the changes were made. Again she seems to have taken the view that the object of the exercise was to prevent having to give Meteor an E in relation to an important financial indicator. But as is pointed out in the oral and written submissions, an E was effectively awarded for nothing at all and there was ample evidence to justify a D.

58. The next alteration which indicated bias in the judge’s view was the alteration of the word “unprecedented” to the word “atypical”. But the explanation seems to be quite simple. The word “unprecedented” in its literal meaning means without precedent. That was felt to be possibly too strong and the more appropriate word “atypical” was used. It is well nigh impossible to read anything sinister into it and it is very difficult to understand how it could in any way constitute evidence of bias. The whole argument got bogged down on a largely irrelevant issue as to the confidence in the English language of the Danish evaluators.

59. I now turn to deal with the issues of reasonableness but it is important first to consider the legal framework in which these issues were alleged to have arisen. The EU Directives require that there be a right of appeal from a refusal to grant a licence to an independent body. That body need not necessarily be a court but under Irish legislation the appeal lies to the High Court. It was at all material times conceded by counsel for the Director that the function of the High Court on such an appeal was somewhat wider than the function of the High Court on a judicial review. For reasons which will emerge I find it unnecessary and inappropriate that I should express any views on the correctness or otherwise of that concession. Counsel for the Director however at all stages argued that the statutory appeal was not intended to cover findings of fact which it was open to the fact finder to make.

60. In the event, Macken, J decided to adopt a standard which has been applied by Kearns, J in M & J Gleeson & Co. v. Competition Authority [1999] 1 ILRM 401 . That was statutory appeal from a decision of the Competition Authority and in the following two paragraphs from the head note accurately summarise the views of Kearns, J which are relevant to this case.

61. It is clear from a reading of the judgment of the Canadian Supreme Court in the Southan Inc case delivered by Iacobucci, J that the Court took the view that what it called the “patently unreasonable” test was appropriate only where the court was confined to considering jurisdictional issues. This was the kind of test that was held to be appropriate by this court in judicial reviews of tribunals in the State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642 and O’Keeffe v. An Bord Pleanála [1993] IR 39 . But in those cases the deciding body was or was alleged to have been in jurisdictional error by acting wholly unreasonably and therefore in effect ultra vires. The Canadian Supreme Court, as I understand it, took the view that a jurisdictional test of that kind could not be appropriate where there is a statutory appeal. Whether that view is right or wrong would not seem to be relevant for the purposes of this case. But the important point is that the Canadian court, having taken that view, had to then consider the opposite end of the spectrum, that is to say whether all questions of correctness were open on the appeal. The court took the view, as this court has taken on many occasions, that there must be curial respect for expert tribunals because such tribunals are set up by statute precisely because of their expertise and it would not make sense that a court of amateurs should have a right to reverse courts of experts in matters pertaining to their expertise. I have no problem about agreeing with that aspect of the Canadian decision but as to what the limits of a particular statutory appeal may be will probably depend on the nature of the subject matter and the context in which the appeal is brought. In this case the appeal against the refusal of the licence was brought in the context of a competition which Orange had lost. I intend to confine myself in this judgment to expressing views as to what are the limits of the appeal in a case where there is such a competition. Unfortunately the entire legislative scheme has been drafted in a way that is more appropriate to the situation where there is a single application for a licence. The situation where there is a competition is not easily fitted in to the appellate scheme. It was clearly contemplated that there may be competitive tenders it is incumbent on this court to interpret the legislation in a way that will cover such a competition. For this purpose it is necessary to postulate a situation where for instance there might be five or six applicants for a license who all participated in a competition organised by the Director. Is it to be suggested that a disgruntled competitor who is informed by the Director that she intends to refuse it a licence can, by means of discovery or otherwise, bring all the competitive tenders to the light of day and all discussions relating to them, notwithstanding the unwieldiness and length of such a process and the invasion on what must have been understood by all tendering parties to be an

62. The statutory scheme requires the Director, if she is proposing to refuse a licence, to so inform the applicant and to give reasons. She must then consider any representations made. If she decides to refuse the licence she must so notify the applicant and must again give reasons. It is at that stage that the right of appeal arises. If the applicant was a single applicant no real problem arises because if the reasons were wrong (applying whatever test is appropriate) then there is no problem about mounting an appeal. If however there is a competition and the applicant is not the winner of the competition, then the most that the applicant can expect in the way of reasons from the Director is an indication of the aspects of the tender on which the applicant was marked less than a relevant competitor. It cannot ever have been intended that he should be entitled to see the marking awarded to the rival applicants. Still less is he entitled to see (except in the rarest of circumstances where there might be a strict judicial review application) all the documentation in connection with the competition. In this case all that documentation was produced by consent but if there had not been such consent forthcoming, it would be my view that Orange would not have been entitled to see it. The evaluators in carrying out their process were not strictly speaking deciding on who should get the licence. That ultimately was a matter for the Director. Rather, they were assisting the Director by awarding marks in the competition and reporting to the Director on who the winner was. Once the Director accepted in this case the reports before her that Meteor was the winner of the competition, then quite rightly her first and most important reason for refusing the licence to Orange was that Orange was not the winner. No doubt there could be rare situations where a High Court on appeal could go into aspects of the competition itself as for instance where an appellant produced an Affidavit by somebody involved in the evaluation alleging malpractice on the part of his colleagues. But in general where there is a statutory right of appeal for a licensing system and where in a given instance there were competitive tenders, the tenderers must be taken as having accepted in advance the rulings of the evaluators in awarding marks and the principle of confidentiality in relation to the rival tenders.

63. These principles would be subject obviously to the rules of the tender documents but in my view these two principles are either expressed or implied in the tendering arrangements in this case. The right of appeal cannot except, as I suggested, in the rarest of circumstances, involve an investigation of the actual marking in the competition. An appeal however may embrace many other matters. The representations made by the appellant to the Director after she gave reasons why she was proposing to refuse a licence, may not have been properly considered as evidenced by any reply thereto. The agreed procedures leading up to the actual evaluation may not have been complied with. The procedures after the evaluation may not have been complied with. There may be evidence of bias in the correct legal sense on the part of the Director or the evaluators. But what the appellate court cannot do is reconsider the actual marking.

64. By the expression “marking” I am including all the steps leading up to the sending forward to the Director of the final evaluation report.

65. It follows that in my view the learned High Court judge should not have embarked on those issues of so called “reasonableness” in respect of which she found in favour of Orange. Some of these overlapped with issues on bias. As I have already indicated findings all one way whether right or wrong could not be evidence of bias but in the earlier part of this judgment I went on to consider whether even if I was wrong about that, the learned High Court judge was correct in finding bias. I took the view that in each case she was incorrect. Insofar as there was overlap in relation to any of these issues with the allegation of unreasonableness as of course there was in the case of

66. With regard to financial management and solidity, the trial judge decided that the marking under the sub-indicator “experience of the applicant in the Irish market” was unreasonable on the grounds that it was unjustified to treat the heading “other relevant experience” as equivalent to “experience of the applicant in the Irish market” . It was further unreasonable to award Meteor a D and Orange an E. The reference to “other relevant experience” is a reference to the contents of the tender document. Under the requirements of the tender document an applicant had to describe its “competence and experience” . The document goes on to refer to the field of establishment of telecommunications in general and mobile communication in particular, experience arising from the ownership of networks in OECD countries, ownership interests in other mobile telephone networks and experience working as part of a consortium is relevant. Finally there is the catch all phrase “other relevant experience”. As already explained the tenderers would have had no advance notice of an indicator “experience of the applicant on the Irish market”. But what seems to have happened is that the tender documents indicated that Meteor had some limited experience of the Irish market via RF Communications whereas Orange had none at all. The evaluators thought it appropriate in those circumstances to include the Irish experience as an indicator. As a matter of ordinary common sense they were clearly entitled to do this unless there was some aspect of European Community law which prevented them. That is of course what is suggested (inter alia). But I do not think that it has been established in any way to the satisfaction of this court that an indicator of experience in the Irish market contravenes European Community law. It is obviously of some advantage to have had some Irish experience but it does not matter whether the company that has had the Irish experience is Irish, English, French or German or any other nationality. It is a purely factual matter and in attributing value to such information, there is no discrimination in my view contrary to European Community law. At any rate the evaluators could not be regarded as having been unreasonable in taking the view which they did in this regard.

67. As already explained the Director was under a statutory obligation to give reasons at two separate stages of the procedures. The Director was obliged in the first instance to notify an applicant of her proposal to refuse to grant a licence and under Section 111 (2B) (f) of the Postal and Telecommunications Services Act, 1983 (as amended) was required to give “a statement of the reasons for the proposal”. Subsequently when the Director was refusing the licence she was again obliged by statute to give reasons. The first obligation to give reasons arises under the domestic statute only but the second is required by European Community law in the form of a directive in addition to the Act itself. However the entire statutory framework has been created with a view to implementation of the EU directives and it follows from that in my view that any decision of the European Courts pertaining to the nature of the reasons which have to be given, while not binding is highly relevant in interpreting either of the statutory requirements to give reasons in the 1983 Act. A great deal of Irish Case law has been referred to but I think that it is hardly necessary to go beyond the decision of the Court of First Instance of the Court of Justice of the European Communities in Adia Interim SA v. European Commission [1996] ECR II - 321 . The learned High Court judge took the view that that case was not really relevant as it was dealing with a simpler situation and that it was wholly distinguishable from this case. I cannot agree. It would seem to me to be highly relevant. In that case an employment agency had responded to an open invitation to tender for the supply of agency staff issued by the Commission. The Commission had selected three agencies from the field of tenderers but rejected the appellant’s tender. Under the particular procedure that applied in that particular situation the obligation to give reasons only arose when requested. The request was made and a letter in the following terms was sent by the Commission.

68. The court considered that this letter constituted sufficiently detailed reasons for the rejection of the tender “because it confirmed that it satisfied all the formal requirements of the procedure that was considered to be less economically advantageous than the tenders of Ecco, Gregg and Manpower at the stage when the three award criteria were applied”. It is true that the court goes on to observe that “the sufficiency of that reasoning is borne out by the fact that - as the applicant confirmed at the hearing - when it was informed that its tender had been rejected in December 1994, it was able immediately to identify the precise reason for its rejection, with the presence of a systematic error in the calculation of the price”. The learned trial judge has attached significance, and in my view undue significance to that addendum. It does not affect the important point to be taken from the reasoning in the judgment, that is to say that comparative reasons in a situation of comparative tenders are not required to be given. Furthermore the particular letter relied on by the court had been somewhat irregular in terms of the lateness in which it was delivered. Clearly the court took the same view as the Supreme Court has taken in O’Keeffe v. An Bord Pleanála cited above that provided that an applicant is made reasonably aware of the reasons the precise manner or form in which that is done is not important. In this case the correspondence from the Director combined with the written summary, albeit non-comparative, of the 6th July, 1998 gave quite sufficient reasons.

69. I should of course make clear that following on the receipt by Orange of the Director’s notification of her proposal to refuse to grant the licence to Orange and giving the reasons (which was on the 22nd September, 1998) Orange on the following day wrote to the Director claiming that the alleged reasons for her proposal to refuse were invalid, inadequate and not of the type contemplated by the Act. On the 28th September, 1998 the Director wrote to Orange rejecting those allegations. On the 12th October, 1998 Orange made lengthy written representations on a without prejudice basis. On the 30th October, 1998 the Director responded to the representations and notified Orange of her decision to refuse a license. The stated reasons being

70. Having regard to the Adia case in particular I take the view that both sets of reasons were sufficient. But I take that view also independently of the Adia case on the basis of what the Oireachtas must be taken to have intended having regard to the nature of a comparative process and statutory time limits etc. A 51 day hearing in the High Court and a 17 day hearing in the Supreme Court could not possibly have been in the contemplation of the Oireachtas and yet there was nothing unique about this case. In fact one could imagine much more complicated cases where there would be several tenderers and where an investigation of the evaluators’ assessments and markings in the High Court might be just as long and longer. As I already indicated earlier on in this judgment it is my view that the simple statement that the appellant was not the winner of the competition was the most substantive reason one could expect to get. In addition Orange had received the Summary Report. As I have already explained that does not constitute deprivation of the right of appeal. In my view the reasons given at both stages were adequate in all the circumstances.

71. I now turn to the two matters arising in the cross-appeal. The first of these is the claim that the learned High Court judge should have found actual bias in one instance rather than apparent bias. As for the reasons which I have indicated I take the view there was no justification for a finding of bias of any kind, I would be of the view that this submission must fail.

72. The second issue arising on the cross-appeal is whether the ruling of the learned High Court judge, excluding evidence on the reasonableness issue, was correct or not. It is undoubtedly true that as a general proposition if reasonableness is to be an issue in an appeal, whether in the O’Keeffe v. An Bord Pleanála sense or in the M & J Gleeson sense, an appellant alleging unreasonableness cannot be preventing from adducing relevant evidence on the issue of whether the Director was unreasonable having regard to the material put forward. If for instance the applicant for a licence was a single applicant and there was no comparative tendering, and a technical reason was given by the Director for refusing the license which was patently absurd to anyone with the relevant technical knowledge, relevant expert evidence pointing this out would be admissible. But in fairness to the learned High Court judge the ruling relating to admissibility of evidence on bias and non-admissibility of evidence on reasonableness was a kind of mode of trial which she thought was reasonable and practicable having regard to the issues before the court, and I think that broadly speaking it was acquiesced in. At any rate any issues of alleged unreasonableness which arise in the case are issues relating to the evaluators’ decisions, and it is difficult to see how there could be any fresh evidence adduced which could show that any of those decisions were unreasonable in either of the senses contended for. In those circumstances a new trial on reasonableness would be utterly pointless.

73. I would therefore allow the appeal and dismiss the cross-appeal.