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Cite as: [2000] IESC 56

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Spin Communications t/a Storm FM v. Independent Radio and Television Commission [2000] IESC 56 (14th April, 2000)

THE SUPREME COURT

79/2000

KEANE C.J.

McGUINNESS J.

GEOGHEGAN J.

SPIN COMMUNICATIONS t/a STORM FM

.v.

INDEPENDENT RADIO AND TV COMMISSION AND NP

EX TEMPORE RULING delivered on the 14th day of April 2000 by Keane C.J.

1. It is unnecessary for me to set out the background in detail to this case because it derives to an extent from the same sequence of events as the last case. There is this important difference in this case, that the applicants have raised an express issue of bias on the part of the IRTC in granting the licence to the notice party and in that context the applicants have also abandoned the other grounds so that the sole ground on which the action will now be fought in the High Court is on the ground of bias. Because of that, which he saw as a differentiating factor in that case, while the learned High Court judge awarded security for costs in favour of the IRTC, and that decision is not being appealed from, he declined to make an order for security of costs in favour of the notice party and he did so on the basis, as appears from his brief extempore judgment,

that in that case the issue really arose as between the IRTC on the one hand and the applicant on the other hand and that it was a clear issue which only arose between those two parties. He found it difficult to see what role the notice party could have in the resolution of that issue, although it has, of course the greatest interest in its resolution, and he said, against that backdrop, he did not propose to direct the applicant to provide for any security for the costs of the notice party in these proceedings.

2. I am satisfied that the learned High Court judge was in error in adopting that approach. The court is not concerned with a case in which, it may be, that at the end of the High Court proceedings, because perhaps a multiplicity of notice parties were brought in, not all of whose presence was necessary, the court may exercise its discretion by declining to order costs except in favour of one representative notice party as it were who has really carried the whole burden of the argument and in circumstances where the presence of other notice parties may have been entirely superfluous.

3. That is not this case. 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 IRTC 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.

4. 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 IRTC 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.

5. 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 IRTC.