Supreme Court of Ireland Decisions

1. In these proceedings the Applicants, and Appellants before this court, Spin Communications Limited trading as Storm FM (hereinafter referred to as the Appellants) have sought, inter alia, an Order of certiorari by way of Judicial Review quashing the decision of the Independent Radio and Television Commission (hereinafter referred to as the Respondent or the Commission) announced on the 11th of October 1999 whereby it awarded a sound broadcasting contract, commonly referred to as a radio licence, to Maypril Limited trading as Spin FM (hereinafter referred to as the Notice Party). The contract awarded was for a radio service for Dublin designed to serve the 15 - 34 age group. The proceedings were heard by Mr Justice O’Caoimh in the High Court who by judgement delivered on the 8th day of June 2000 dismissed the Appellants application.

2. It is from the judgement and Order of the learned High Court Judge that the Appellant appeals. There is just one ground relied upon by the Appellants in their appeal that is, that there was objective bias on the part of Dr Colum Kenny who was a member of the Commission and participated in the decision to award the radio licence to the Notice Party. In the appeal the Appellants contend that the facts of the case are such as would lead a reasonable person to apprehend that there was a real danger that his chance of a fair and independent evaluation of the application for the licence did not exist by reason of a pre- judgement made by Dr Kenny.

3. The formal process leading to the award of a sound broadcasting contract or radio licence, may be briefly described as follows. In April 1999 pursuant to Section 5 of the Radio and Television Act 1988, the Commission, by way of public advertisement, invited applications for a radio licence for Dublin orientated to the 15 - 34 year old age group.

4. The formal document inviting applications also comprised a guide setting out, inter alia, the format in which applications should be made and the various matters which the commission would take into account in examining applications in the exercise of their statutory functions pursuant to Radio and Television Communications Act 1988.

5. Of the applications received a short list was drawn up which included the Appellants, the Notice Party and two other consortia. Each of these was invited to make an oral presentation which took place on the 27th and 28th September 1999. Each applicant made a formal presentation followed by questioning from the commission.

6. Subsequently the commission decided that the sound broadcasting contract should be awarded to the Notice Party and so announced on the 11th of October 1999.

7. Following the announcement by the commission of its award of the radio licence to the Notice Party, the Appellants were clearly dissatisfied with the decision of the Commission. They sought, with other unsuccessful applicants, information from the Commission as to the reasons for the decision and the basis on which it was made. Not being satisfied with the kind of response they received the Appellants sought and obtained, by Order of the High Court dated the 20th December, 1999, leave to bring judicial review proceedings in respect of the said decision on a range of grounds. Most of these grounds were not relied upon in the High Court. The only ground relied upon by the Appellant’s in this appeal is, as indicated above, that there was objective or apparent bias on the part of one member of the Commission, namely Dr Colum Kenny, which vitiated the decision.

8. The occurrence which first gave rise to concern on the part of the Appellant’s of at least a possible bias on the part of Dr Kenny was a front page article published in a Sunday newspaper on the 28th November, 1999 to the effect that Dr Kenny had “secretly” attended with the National Drugs Unit of the Gardai at Dublin Castle with a view to checking up on Mr John Reynolds. As previously noted Mr Reynolds is a director of the Appellant’s company and he is also it’s chairman and a shareholder. Mr Reynolds was fearful that the newspaper story, if accurate, may have meant that, unbeknownst to him, some adverse view concerning him and the use of drugs in a nightclub owned by him had adversely affected the Appellant's application. Accordingly, through his solicitors, he wrote to Dr Kenny seeking to ascertain whether such a meeting had taken place and the import of same. All this is outlined in the Affidavit sworn by Mr Reynolds in these proceedings on the 20th December, 1999. This was responded to by an Affidavit of Mr Michael O’Keefe, Chief Executive of the Commission, dated 17th January, 2000 and subsequently by an affidavit of Dr Colum Kenny himself dated 13th March, 2000. In addition to confirming that Dr Kenny had indeed visited the garda drugs unit, during which Mr Reynolds and his nightclub POD had been mentioned, the two replying affidavit’s disclosed other facts and actions of Dr Kenny concerning what has been referred to as the “ drugs issue ” relating to his consideration or pre-occupations in relation to the award of the radio licence in question.

9. The facts and circumstances relating to the issue upon which the Appellant’s rely for the relief sought in the appeal have been set-out in detail by the learned High Court judge in his judgment. Essentially these facts and circumstances are not in issue between the parties. What is an issue is the interpretation or inferences drawn by the learned High Court judge from those facts and circumstances.

10. Accordingly, I think it is appropriate at this stage to set out the relevant facts and circumstances and position adopted by the parties as recited by the learned High Court

11. The terms of this letter are as follows:

12. Mr Conor Maguire S.C.,

13. As you are aware, the IRTC is obliged by statute to have regard to the character of persons who are involved as shareholders in applications for a broadcasting contract. I have a concern, explained below, which I ask you to address in some way as chairman.

14. Mr John Reynolds is a shareholder in, and chairman of, on of the groups (STORM) now applying for a youth franchise in Dublin. He is owner of the POD night-club, a fact which has been repeatedly highlighted in recent publicity generated by his group’s application.

15. Within the past year, I was advised by a Senior Counsel who has worked in drug-related cases not to let my children frequent the POD because, he believes, it is notorious as a place of drug dealing. I had myself earlier heard rumours to that effect.

16. Subsequently, in June of this year, in the course of a case connected with

17. Veronica Guerin, the POD was mentioned as a meeting-place for some of the underworld and reference was made to drugs in that context (see attached Irish Times report, 17/6/99).

18. Subsequently, Judge Desmond Windle, stated in a case that the POD should be known as “Place of Drugs” and, according to a report, “urged the superintendent for the area to take into account the evidence of drug dealing when the club’s annual licence renewal came up later this year” (see attached Irish Times report, 25/6/99).

19. I am not personally aware of any attempts by Mr Reynolds to distance himself from such statements and impressions or to identify himself publicly as being strongly anti-drugs.

20. I am concerned about the impression which will be conveyed to young Dublin should a group so identified with the owner of the POD be granted the youth franchise. What if the IRTC were to grant this group a contract and then renewal of the POD’s club licence were to be opposed by the local superintendent?

21. I note that what is described in the application as STORM’s proposed “political forum” programme (p.63) has been given the title “DID YOU INHALE?” which is quite inappropriate in the circumstances.

22. As you know, I did not shortlist the STORM application, on other grounds. However, I think that this matter of character is distinct from other considerations.

23. I personally have no evidence which in any way connects Mr Reynolds personally with drug-dealing or with knowingly permitting it to take place. The main question which arises in the light of what I have outlined above is whether the reputation of his night-club or his failure to take a stronger public stance on drugs is relevant to any judgment of his character by the IRTC.

24. I am available to discuss further with you this concern in absolute privacy.

25. The learned High Court Judge continued “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.

26. The terms of the 'clarification document' are as follows:

27. Under s. 6 of no. 20 of 1988, the Commission “shall have regard to”-

28. In response to written questions from the IRTC concerning these applications, STORM FM has chosen to introduce to the proceeding an assertion that Mr John Reynolds has “been to the forefront in strenuous efforts to clean up the image of dance and new

29. Desmond Windle stated that Mr Reynold’s POD nightclub should be known as “Place of Drugs” (rather than Place of Dance) and, according to a report, “urged the superintendent for the area to take into account the evidence of drug dealing when the club’s annual licence renewal came up later this year” (see Irish Times report, 25/6/99).

30. The statement that Mr Reynolds now makes about drugs is unsatisfactory. Detective Inspector Brian Sutton is not in fact “head” of the National Drugs Unit. The National Drugs Unit does not give any nightclub “a clean bill of health”. If Mr Reynolds is committed to implementing all necessary anti-drugs measures at the POD, his resolve has been stiffened by a judge putting him on notice that the Gardaí may oppose the renewal of his licence.

31. In my opinion the requirement in S.6 of the Act that members of the IRTC have regard to the character of applications is especially relevant where we are awarding a licence for a radio service which will - to use the marketing language so common in these applications - “target” young people, young people who can be impressionable.

32. While the IRTC has before it no evidence that Mr Reynolds’ nightclubs have been in fact “place of drugs”, there is no compelling reason for us to be swayed by his own assertions in this context and we ought not to consider them as evidence of the character of the applicant.'

33. The learned High Court Judge continued - “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 arise 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 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 one 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 presentation, 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.

34. At the outset counsel for the Appellants stated that the only issue was objective bias on the part of Dr. Kenny as a member of the Commission there being no issue on the material facts. It was the Appellant’s contention that the evidence before the High Court demonstrated that Dr. Kenny had, prior to the receipt of any bid from any party, formed a fixed adverse opinion of Mr John Reynolds, the Chairman of the Appellant consortia, to the effect that it would be wrong to aware the licence to a consortium associated with him or his nightclub known as the POD. Accordingly the participation by Dr. Kenny in the vote on the final determination of the award of the licence vitiates the decision of the Respondents.

35. As to the test to be applied regarding the existence of objective bias the Appellants relied first of all on what was stated by Murphy J. in Dublin and County Broadcasting Ltd -v- IRTC (unreported 12th May, 1989) “ I entirely accept that it would be irrelevant and immaterial if, in a case such as the present, it was established as a matter of fact that bias was non-operative or that the particular person accused of the bias was outvoted or whatever. If it is shown that there are on the facts circumstances which would lead a right minded person to conclude that there was a real likelihood of bias, this would be sufficient to invalidate the proceedings of the tribunal .”

36. In this regard the Appellants also relied upon the statement of the Chief Justice,

37. The Appellants also relied on the judgement of Geoghegan J. in the same case in particular passages from pages 8 and 9 of his judgment where he stated “It seems clear from the case law in Ireland and England that an allegation of bias must be made on foot of circumstances outside the actual decisions made in the case itself” and at page 9 of the same judgment “ Even in cases where there is no evidence of actual bias and no evidence of the adjudicator having any proprietary or other interest in the outcome of the matter, there will still be held to be apparent bias if a reasonable person might have apprehended that there might be bias because of some particular proven circumstance external to the matters to be decided in the case such as for instance a family relationship in circumstances where objection maybe taken (O’Reilly -v- Cassidy [1995] 1 ILRM 306 ) or the judge having been involved in a different capacity in matters which were contentious in the case (Dublin Wellwoman Centre Ltd -v- Ireland [1995] 1 ILRM 408 ) or where there was evidence of prejudgment by a person adjudicating ( O’Neill -v- Beaumont Hospital Board [1990] ILRM 419 ).” The Appellants in their submissions also relied on the latter two cases cited by Geoghegan J. in his judgment as well as the judgment of Keane J. in Radio Limerick One Ltd -v- The Independent Radio and Television Commission [1997] 2 IR 291 and that of McGuinness J. in Bula Ltd (in receivership) and Ors -v- Tara Mines and Ors (unreported, The Supreme Court, 3rd July, 2000) . Apart from the question as to the test to be applied in determining whether objective or apparent bias could be considered to exist, the Appellant sought to compare the pre-judgment found to have existed in the O’Neill -v- Beaumont Hospital Board case and the withdrawal of a member of the commission from its deliberations in the Radio Limerick One case with the facts of this case.

38. The Appellants submitted that the letter of 22nd September, 1999 written by

39. Dr. Kenny to the Chairman of the Commission, Mr Conor Maguire S.C. constitutes evidence of the pre-judgment of Dr. Kenny. They contend that the letter demonstrates that Dr. Kenny, prior to visiting the gardaí and indeed prior to the receipt of any bid from the Appellants, had formed an adverse view of the POD nightclub and thus of Mr Reynolds and that it demonstrated that Dr. Kenny was of the view that it would not be wise to give a licence to any Applicant associated with such a nightclub. Furthermore, it was submitted, that the omission of Dr. Kenny to inform the Chairman in that letter of his contacts with the gardaí and of the fact that the gardaí were not going to object the renewal of the licence for the nightclub in question supported their contention for the existence of objective bias.

40. Secondly, what the Appellants call the 'secret' conduct of Dr. Kenny in going to the gardaí also constituted evidence of bias in contrast to the conduct of the member of the commission whose behaviour was in question in the case of Dublin and County Broadcasting -v- IRTC and Ors (unreported), High Court, Murphy J. (12th May, 1989) . Thirdly, the Appellants rely on the document of “self clarification” as demonstrating that the pre-judgment which they alleged against Dr. Kenny had not been discarded by him following his meeting with the Chairman of the commission at which the letter of 22nd September, 1999 was discussed.

41. Next the Appellants relied on the extensive number of questions which were raised by solicitors acting on behalf of Mr. Reynolds writing out of the publication in the Sunday Tribune and the fact that Mr Kenny, through his solicitors, declined to respond to those questions on the grounds that they had been instructed by Dr. Kenny to issue defamation proceedings against that newspaper. The Appellants contend that in the absence of the issuing of defamation proceedings to-date the Court should draw inferences in favour of their contention as to the existence of objective bias.

42. Finally, the Appellants laid emphasis on inaccuracies and inconsistencies to be found on comparing that part of the affidavit of Mr Michael O’Keeffe, (Chief Executive of the Respondents) where he gives an account of events based on what he was told by

43. Dr. Kenny and the affidavit of Dr. Kenny himself dealing with the same events. Both affidavits been filed in the course of these proceedings.

44. On the basis of the foregoing matters which were in evidence before the High Court, the Appellants submitted that a reasonable person would be compelled to an apprehension that there was a real danger that Dr. Kenny may have been biased and that the decision of the Respondents should therefore be set aside.

45. There was no substantive divergence between the submissions of the Respondents and those of the Appellants as to the appropriate test to be applied in determining the existence of objective or apparent bias on the part of an adjudicator and the Respondents referred to very much the same line of case law relied upon by the Appellants and in particular the judgment of Keane, C.J. in Orange Communications -v- Director of Telecommunications Regulation and Meteor Mobile Communications Ltd on this point. The Respondents further submitted that while the test for objective bias is the same for Courts and administrative tribunals the application of that test for administrative tribunals is less stringent. The Respondents submitted that if the manner in which Dr. Kenny pursued his enquiries could be considered as somewhat unconventional, however, a departure from the norm does not of itself give rise to a reasonable apprehension that the decision-maker may have been biased.

46. As regards the facts the Respondents submitted that the Appellants, for the purpose of making their case, had selected and isolated a number of facts from all other facts and circumstances relevant to the whole process of considering the various applications for the licence and in particular all of Dr. Kenny’s attempt to address his legitimate concerns on the so-called drugs issue. Counsel for the Respondent stated that he relied on 21 facts which he had catalogued in his submissions to the High Court and which were recited in the judgment of Mr Justice O’Caoimh at pages 19-23 inclusive of his judgment in this case.

47. I don’t consider it necessary to recite once again in this judgment these 21 points but I will refer to some of the more salient facts or circumstances relied on by Counsel for the Respondents namely:-

48. With particular regard to the “clarification document” (prepared by Dr. Kenny some time between 6th and 11th October, 1999) Counsel for the Respondents submitted that it must be considered in the context of the answer received from the Appellants to the question posed to the Applicants concerning their policy or substance abuse by young people.

49. The answer received from Appellants to that question seemed to Dr. Kenny to contain inaccuracies and these inaccuracies were confirmed on making inquiries to the gardaí. It was in the light of such confirmation that Dr. Kenny prepared the 'clarification document'. His uncontradicted evidence was that he did so "with a view to clarifying in my mind whether the information altered in any way the view which I had reached on 22 September, 1999".

50. Furthermore the uncontradicted evidence of Dr. Kenny was that having considered matters he concluded that the position had not changed and the drugs question remained irrelevant to the decision process.

51. In broad terms the Respondents submitted that Dr. Kenny’s conduct taken as a whole showed no more than a concern that no Applicant for a radio licence that is directed at the age group of 15-34 year olds should be associated with any laxity towards the use of illicit drugs. He had resolved these concerns himself and his conduct could not give rise to an inference of objective bias on his part.

52. As regards the submissions of the Appellants based on the absence of a response by Dr. Kenny to the detailed questions posed to him following the story in the Sunday Tribune in the letter from Mr. Reynolds’s solicitors dated the 22nd day of November, 1999 and the alleged inconsistencies between the affidavit sworn by Mr O’Keeffe and the affidavit of

53. Dr. Kenny, the Respondents first of all submit that the Appellants are not entitled to rely upon events which are subsequent to the decision being challenged in support of a contention that decision is vitiated by objective bias. It was submitted that to succeed in a claim of objective bias it is necessary that the bias or the appearance of bias be present at the time of the making of the decision. In this respect the Respondents relied on the judgment of Barron, J. in the Orange case in which he stated that the factor from which bias maybe concluded by a reasonable observer “ must pre-date the decision complained of ”. Accordingly these matters cannot be considered relevant to the Appellants case. In any event, the Respondents disputed that there were any inconsistencies between the Affidavits and that in the one area in which the Affidavit of Mr O’Keeffe was not complete that lack of completeness was cured by the Affidavit of Dr. Kenny. As regards the absence of a response to the questions sent to

54. Dr. Kenny, the Respondents added that at all material times Dr. Kenny was in receipt of legal advise in this regard. In all the circumstances it was inappropriate for the Appellants to rely upon these subsequent events in support of a contention that there was an appearance of bias vitiating the decision made some months earlier.

55. Counsel for the Notice Party adopted the submissions made by Counsel on behalf of the Respondents and made submissions along similar lines concerning the test to be adopted in determining whether the existence of objective bias is to be inferred.

56. The primary point of law on which the Court was addressed was the test which should be applied in determining whether the decision taken by the Commission on the award of the licence was tainted by objective bias on the part of Dr. Kenny. Bias can be of two types, conscious or actual bias or objective bias. The Appellants have expressly abandoned any allegation of actual or conscious bias on the part of Dr. Kenny. In cases of alleged objective bias the Courts proceed as Keane, C.J. pointed out in the Orange case (cited Supra) at page 119, “ on the assumption that, where there is a reasonable apprehension of bias, the decision must be set aside, although there is not the slightest indication that the decision maker was in fact actuated by any bias ”. The test to be applied in determining what may be regarded as constituting objective bias on the part of an Adjudicator (and I use this term in order to cover judicial proceedings and administrative or quasi judicial proceedings before tribunals or other administrative bodies) has been considered in a good number of cases in recent years before the High Court and in particular before this Court. I think the law on this question is now clear and is that as expressed by Keane C.J. in his judgment in the Orange case at page 120. In his judgment, with which a majority of the Court expressly agreed, the Chief Justice stated that there is “no room for doubt as to the applicable test in this country; it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, ie. where it is found that, although there is no actual bias, there is an appearance of bias". For this reason, I don’t consider it necessary or useful to review, on this specific point, the other authorities relied upon by the parties. In Bula Ltd (in receivership) -v- Tara Mines Ltd and Ors (unreported, Supreme Court 3rd July, 2000), McGuinness, J. having reviewed a range of cases in this jurisdiction and other jurisdictions noted that “ the various decisions and dicta which I have set out above, taken together with the recent authoritative statement of the Chief Justice in the Orange case, seems to me to establish without doubt that the test to be applied in the present case is that of the reasonable persons, reasonable apprehension of bias .”

57. Moreover, for objective bias to be established it must be shown that there existed some external factor extraneous to the decision making process which could give rise to a reasonable apprehension that the decision maker might have been biased. Furthermore, this external factor must exist prior to the decision made. As Murphy, J. stated in his judgment in the Orange case “ 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.

58. Geoghegan, J. in his judgment in the same case, stated “ even in cases where there is no evidence of actual bias and no evidence of the adjudicator having any proprietary or other interest in the outcome of the matter, there will still be held to be apparent bias if a reasonable person might have apprehended that there might be bias because of some particular proven circumstance external to the matters to be decided in the case such as for instance a family relationship in circumstances where objection maybe taken ( O’Reilly -v- Cassidy [1995] 1 ILRM 306 ) or the judge having been involved in a difference capacity which were contentious in the case ( Dublin Well-Woman Centre Ltd -v- Ireland as cited above) or where there was evidence of pre-judgment by a person adjudicating ( O’Neill -v- Beaumont Hospital Board [1990] ILRM 419 ).”

59. Again in the Orange case Barron J. stated “ However, it seems to me that the essence of bias is the existence of some factor as already explained that constitutes a set of circumstances from which a reasonable observer might conclude that there was a real possibility that such a factor would cause the decision maker to seek a particular decision or which might inhibit him or her from making his or her decision impartially and independently without regard to such factor .” (Emphasis added).

60. In the course of the same judgment Barron, J. Said “ insofar as bias maybe found to exist or to have existed, it will always predate the actual decision or contemplated decision. Bias does not come into existence in the course of a hearing. It may become apparent in the course of a hearing and in that way alert a party to the possibility of bias and so enable such a party to establish facts which show that the attitude adopted by the decision maker in the course of the hearing was one which might have been expected having regard to those facts. The essence of bias then is the perception ... once all the facts are known that the particular decision maker could never give or have given a decision in relation to the particular issue uninfluenced by the particular relationship, interest or attitude. Obviously, if it is perceived that it may influence a decision yet to be given, it must exist at that stage”.

61. In my view there is clearly a distinction to be drawn between the existence of factors external or extraneous to the decision making process in which an adjudicator is engaged and the manner in which that process is conducted on the basis of factors which are relevant or material to the decision to be made. External factors should not affect the decision nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. Obviously factors relevant to the decision may affect it but the decision must be arrived at fairly. As Barron, J. stated in the same judgment “ There is a duty upon the decision makers to carry out the process leading to the decision in a particular way. Not to do so may make the process unfair or otherwise invalidate it, but that is not bias”. Keane, C.J. in agreeing in his judgment in the Orange case with Barron J’s approach said “that a Judge may conduct a case in such a manner as to violate the requirements of natural justice or fair procedures: If he does so, his decision would be set aside on that ground, whether the failure was due to fatigue in the hearing of a case at the end of a long and crowded list, an innate and sometimes regrettable irreversible tendency to rudeness or bad manners, or hostility, overt or covert, to one of the parties based on race, religion or gender or simply because the Judge did not like the appearance of the litigant in question. No doubt, the last two examples will readily attract the description of “ bias”. But in any such instance the decision is set aside, not on the ground of objective or even actual bias but because, under our constitution and law, natural justice and fair procedures must at all times be observed in the administration of justice and in proceedings before quasi -judicial tribunals and the Superior Courts will not tolerate breaches of these canons, whatever the motive and whether indeed any particular motive on the part of the adjudicating tribunal which has fallen into error has been established.”

62. My understanding of the judgments of Keane C.J. and Barron, J. is that should a decision-maker pursue a line of inquiry concerning a matter relevant to the decision to be made in a tendentious or unfair manner this does not in itself permit, as a matter of law, the decision to be impugned on the grounds of bias but rather it falls to be reviewed in accordance with the requirements of fair procedures or natural justice. This is because the 'factor' involved is internal and not external or extraneous to the decision making process.

63. In the present case the Appellants allege objective or apparent bias on the part of Dr. Kenny on the grounds of an alleged pre-judgment by him as to the suitability of the Appellants, and in particular of its Managing Director, Mr Reynolds, for the award of the Radio licence in question. This contention falls to be examined in the light of the foregoing principles.

64. I think it is appropriate to examine the decision making process in which the Respondents, and Dr. Kenny as a member of the Commission, were engaged.

65. Firstly, I think it is relevant to recall that the Commission, as a Statutory Body, was required to consider every application for a Sound Broadcasting Contract or Radio Licence in accordance with the provisions of the Radio and Television Act, 1988 and to do so “ for the purpose of determining the most suitable applicant, if any, ...” [Section 6 (1)]. Subsection (2) of Section 6 requires, inter alia , that “In the consideration of applications received by it and in determining the most suitable applicant to be awarded a sound broadcasting contract, the Commission shall have regard to -

66. Secondly, it is not in contention that substance or drug abuse among young people is, at least sometimes, associated with the entertainment industry and that being the case it is a topic properly considered relevant to the attitude and policy of an applicant for a broadcasting licence orientated towards young people. This is reflected in the written question posed by the Commission (on the proposal of Dr. Kenny) to three of the short listed Applicants (the fourth, the Notice Party, having already addressed the question of drugs in their application) which was in the following terms “ Given the entertainment industry’s influence on young people, what is the attitude of your group towards substance abuse in general and how would that attitude be reflected in the programming of your proposed station? ” The Appellant’s response stated, inter alia , that they were “uniquely placed to educate young people about the realities of drug taking” and “ several members of the STORM FM consortium had been to the forefront in strenuous efforts to clean up the image of dance and new music which, for too long, has been unfairly associated in the popular mind with drug abuse” (It also went on to state how Mr Reynolds had liaised closely with the Garda Drugs Unit so as to fully implement its recommended anti-drug dealing measures in his night clubs as a result of which they had been given a clean bill of health). Moreover, in the course of the hearing Counsel for the Appellants acknowledged that in the circumstances of the case a concern as such by the Commission or by Dr. Kenny with the “drugs issue” was not to be criticised.

67. I think it is clear from the evidence before the High Court that the so called “drugs issue” was a factor relevant to the decision which the Commission and its members had to make and not something which they were bound to disregard. It was not a factor external or extraneous to their decision. Similarly, I think it is self-evident, that should any question arise within that process as to a possible laxity on the part of an applicant, or one of the persons involved with that applicant, in his or her attitude to the abuse of drugs, that would be a relevant matter to be looked at. Of course if such a matter were to be considered as a factor influencing in any way the decision it would have to be dealt with, as regards the party concerned, in a manner consistent with constitutional justice and fair procedures. Accordingly, in any review of the conduct of Dr. Kenny in relation to the contested decision the relevance of the “drugs issue” to the decision making process must be taken into account.

68. What also must be taken into account in cases of this kind, is the nature of the decision process in which the decision maker was engaged and the steps or procedures followed leading to the final decision. Naturally the nature of the process will vary according to the role and function of the body concerned and the nature of the task entrusted to it. While the principles of law applied will be the same, they must be applied in the context of the actual process in which the body in question, or its members, have been engaged. As Henchy J. said in Kiely -v- Minister for Social Welfare [1977] IR 267 at 281 “ Tribunals exercising quasi-judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act on hearsay to depart from the rules of evidence to ignore courtroom procedures, and the like - but they may not act in such a way as to imperil a fair hearing

69. I now turn to the procedures followed by the Commission in the carrying out of its statutory task of determining the most suitable applicant to be awarded the radio licence in question. In March 1999 the Respondents published a notice inviting expressions of interest in the securing of the radio licence. The Appellants were one of the parties which responded by stating their expression of interest and in general terms the type of service that would be provided. That did not constitute an application for the radio licence. In April, 1999 the Respondents formerly invited applications for the radio licence in question and the Appellants lodged their application by mid-July 1999.

70. The actual decision process is summarised in a letter written by Messrs Ivor Fitzpatrick & Company, Solicitors acting for the Commission, in response to a joint letter in October 1999 from the three unsuccessful short-listed applicants. A relevant extract from the letter is cited at paragraph 13 of the Affidavit of John Reynolds, a Director of the Appellants sworn on the 20th December 1999. It says as follows:-

71. The Commission met on the 6th September, 1999 when it decided on the short list of four applicants. Subsequently, it met on 22nd September 1999 and agreed questions, including the written question concerning the “drugs issue” to be put to the short-listed Applicants. Oral hearings of the Applicants were held on 27th September, 1999 at which the Applicants were also handed the Commission’s written questions. A final meeting of the Commission was held on 11th October, 1999 at which they took a collegiate decision to award the contract to the Notice Party.

72. The evidence discloses that prior to the receipt of the application, Dr. Kenny had been advised by a senior counsel (who was said to have worked in drug-related cases) not to let his children frequent the night club known as POD because it was believed to be a notorious place for drug dealing. In addition Dr. Kenny had earlier heard rumours to that effect. Also he had been aware that the POD nightclub had been mentioned in an Irish Times report of June, 1999 as a meeting place for some underworld figures and references made to drugs in that context. He had also read a report, again in the Irish Times and later in June 1999, that a District Judge had made references to the POD nightclub as a place of drugs and, according to the report, urged a garda Superintendent to take account of the evidence of drug dealing when the club’s annual licence renewal came before the Court later that year.

73. The fact that Mr Reynolds was the owner of the POD night club had been highlighted in publicity generated by his groups application for the radio licence.

74. The Appellants have relied on Dr. Kenny’s awareness of these matters as evidence of pre-judgment of their application on his part and that it was such as to give rise to a reasonable apprehension of bias or pre judgment on his part. Of course they do not rely on this alone but do so also in conjunction with his subsequent conduct, in particular with his meetings or communications with the Garda Drugs Unit, his letter to and meeting with the Chairman of the Respondents and his personal memorandum made shortly before the final decision made at a meeting of the Commission on the 11th October, 1999. However, I want first of all to make some observations about Dr. Kenny's awareness of these matters before dealing with the overall situation also relied on by the Appellants.

75. Persons appointed to Boards, Tribunals or other Administrative Bodies who exercise quasi judicial functions are appointed not only because of some particular professional qualification or specialisation but also because they are expected to bring to bear in their judgments their general experience and knowledge of contemporary society which is relevant to the issues which they may have to consider. The uncontested evidence before the High Court was that Dr. Kenny, as a parent, a university lecturer and a member of the Commission was at all times very concerned about the question of drugs generally in Dublin. Furthermore, as indicated above, it is incontestable that the policy or attitude of a member of a body applying for a radio licence to issues of drug abuse may be a relevant consideration for the Commission and its members both with regard to the question of the character of an applicant and generally. Once a member of the Commission has become aware that the Chairman of one of the consortias who has made an application for this radio licence is the owner of a night club about which there were adverse reports concerning abuse of drugs in that club, he is put on legitimate enquiry as to the suitability of the Applicant in question. In my view, the evidence goes no further than to establish that on identifying Mr. Reynolds as Chairman of one of the applicants and owner of the club in question Dr Kenny considered himself to be put on such enquiry as regards their application. There is no evidence that he formed any pre-judgment of Mr Reynolds at that stage and indeed the evidence goes the other way. As the learned High Court judge pointed out if Dr. Kenny had rested with and made a decision upon that information (such as it was) and not pursued further enquiries there could well indeed be a basis for calling in question the propriety of his conduct although in my view this would have been more likely to raise questions of fair procedures rather than bias. As Mr Reynolds stated at paragraph 16 of his Affidavit sworn on the 20th December, 1999 “ If my attitude to drugs was a matter of concern, I think the same should have been raised with me.” A complaint which was echoed in the course of submissions on his behalf before this Court, although there is no issue raised as to fair procedures. In any case a single aspect of the conduct of Dr. Kenny in relation to the “drugs issue” cannot be considered in isolation from the context of his conduct as a whole.

76. Before moving onto another aspect of the conduct of Dr. Kenny relied on by the Appellants I should refer to the reliance placed by their Counsel in his submissions on the judgment of this Court in O'Neill -v- Beaumont Hospital Board [1990] ILRM 419 to support his contention that this is a case of pre-judgment on the part of Dr. Kenny. In that case the Plaintiff succeeded in obtaining an Order preventing three members of the Board of Management of the hospital from taking part in any meeting of the Board which would decide whether the Plaintiff's probationary period of service as a consultant at the hospital should be certified as satisfactory. The Order of the Supreme Court was based on a finding of fact that the persons concerned had expressed in a very definite fashion the exercise of a judgement on the merits of matters which would be in contention at that meeting or had committed themselves to a firm judgment on those facts. Moreover, these judgements were found to have been made on an occasion which preceded the notification sent to the Plaintiff of the Board's intention to hold such a meeting on a particular date. The facts in that case are far different from those which arise here.

77. Another aspect of the conduct of Dr. Kenny relied upon by the Appellants as evidence of pre-judgment was his, as it was put, “secret investigation” of the “drugs issue” in his meetings and communications with the Garda Sìochana National Drugs Unit. Dr. Kenny’s contacts with the Garda Sìochana were perhaps more appropriately described as “private” rather than "secret" in the newspaper report which alerted Mr. Reynolds to the fact that such contacts had taken place. However, on the evidence before the High Court it is clear that the object of Dr. Kenny's visit to the Garda Drugs Unit on 13th September, 1999 was for the purposes of discussing generally the drugs scene in Dublin. In the course of that meeting he referred to the publicity concerning the court case during which the District Judge had made adverse observations concerning drugs and the POD nightclub. He learned from the gardai that a number of night clubs, including the POD, had put in place systems of control concerning the use of drugs which the gardaì fully endorsed and which they would continue to monitor. He was also informed that it was not the intention of the gardai to oppose the renewal of the licence for the POD. This position was later confirmed in a telephone conversation with a member of the drugs unit. At a later date he telephoned an officer in the Drugs Unit to check on the accuracy of certain details referred to in the response of the Appellants to the written question posed by the Commission on substance abuse. In addition to his affidavit, Dr. Kenny gave oral evidence in the High Court. His evidence on affidavit about the purpose of his contacts with the gardai was accepted by the learned High Court Judge and had not been contested in cross examination by the Appellants.

78. While the manner in which Dr. Kenny communicated with the gardai for the purpose of being in a position to deal with the applications generally and in particular to the Appellants might be regarded as idiosyncratic it does not in my view constitute evidence of the pre-judgment complained of by the Appellants. Dr. Kenny gave special attention to that matter but his conduct discloses no more than that he was pursuing a line of inquiry relevant to his role as a member of the Commission. While for these reasons I do not consider that, in the circumstances of this case, these enquiries constitute grounds for the Appellants contention of objective bias, Dr Kenny might be considered to have been imprudent in embarking on such enquiries without consulting the Commission itself, or at least its Chairperson. If members of an administrative tribunal embark on enquiries of their own there is at least an increased risk that fair procedures could be breached. However, since the so-called "drugs issue" was not a factor external or extraneous to the decision making process but on the contrary material to it, his enquiries with the gardai cannot be considered as demonstrating objective bias that is to say a ground giving rise to a reasonable apprehension of bias within the meaning of the authorities cited above. In this context the Appellants also relied on a judgement of Murphy, J. in Dublin and County Broadcasting -v- IRTC and Ors (unreported, High Court, 12th May, 1989, where, as a Judge of the High Court, Murphy J. held that the decision of the IRTC in that case was not vitiated by bias largely, it was submitted, because of the forthright manner in which the individual whose conduct was in question in that case had informed the Chairman of the Commission of his own concerns and his own position. This, it was submitted, is in stark contrast to the manner in which Dr. Kenny approached his deliberations. That case was one which related to links between the individual concerned and certain companies, certain individuals associated with the applications and certain shareholdings all of which were external and extraneous to considerations properly arising in the course of the decision making process. It was a case in which the individual concerned brought the attention of the Chairman of the Commission these extraneous factors in order to seek his guidance as to whether he should disqualify himself from participating in the Commission's decisions. In the event, the Chairman took the view that the situation was not such as to disqualify the individual concerned. In the circumstances, Murphy, J. rejected the Plaintiff's claim. The issues in that case were wholly different from those arising here.

79. Counsel for the Appellants attached a great deal of weight to the letter written by

80. Dr. Kenny to the Chairman of the Commission on the 22nd September, 1999. The text of the letter is set out earlier in this judgment. It was submitted that the letter disclosed evidence of pre-judgment on the part of Dr. Kenny having regard to the material adverse to the POD nightclub, and accordingly Mr. Reynolds, contained in the letter. Counsel for the Appellants also relied on the omission of Dr. Kenny to inform the Chairman of his contacts with the gardai or to inform him that the gardai were not going to object the renewal of the licence for the POD. The letter must be read as a whole having regard to its contents and stated purpose. In the first place Dr. Kenny expressed in the letter his substantive personal concerns concerning Mr John Reynolds as a shareholder and chairman of the Appellant with which he was then preoccupied. He concludes by stating that he had no evidence which in any way connected Mr. Reynolds personally with drug dealing or with knowingly permitting it to take place and explaining that the purpose of the letter was to pose the question as to what extent the concerns which he had outlined in the letter could be considered relevant to any judgment of his character by the Commission. He then had a meeting with the Chairman immediately after the latter's receipt of letter. The evidence is that the Chairman expressed the view that these matters were not of sufficient weight to warrant further consideration and Dr. Kenny accepted that.

81. Leaving aside for the moment any question as to the extent to which Dr. Kenny may have accepted the Chairman's view at that point because this is contested by the Appellants I am of the view that the learned High Court Judge was entitled to conclude, and was correct in doing so, that the letter disclosed Dr. Kenny approaching the issue with an enquiring mind and seeking guidance from the Chairman whether the matters which were the subject of his concern should be taken further.

82. Having conveyed very clearly the substance of his concerns for the purpose referred to, I do not consider the omissions referred to as being of any import. In fact short far from demonstrating a pre-judgment at this or any earlier stage, the conduct of Dr. Kenny disclosed no more than an interest in enquiring into a subject matter of legitimate concern and its relevance to the evaluation of the application.

83. The Appellants further rely on the personal memorandum which Dr. Kenny prepared for himself immediately prior to the meeting of the Commission of 11th October, 1999 at which the final decision to award the radio licence was taken. The text of this memorandum has been set out earlier in this judgment. The Appellants submit that this demonstrates that

84. Dr. Kenny had not accepted that the issue of Mr. Reynold's character should form no part of his assessment of the Appellant's application and is in evidence that his pre-judgment had not been discarded by him. This document was prepared by Dr. Kenny subsequent to the written response provided by the Appellants to the written question posed to them on the "drugs issue" and after he had telephoned an officer of the drugs unit to check out certain inaccuracies which seemed to be contained in the response. That response included a statement that Mr Reynolds, in his capacity as a night club owner, had liaised closely and consistently with the National Drugs Unit in Dublin Castle and especially with it's head, Detective Inspector Brian Sutton. It also stated that all of Mr Reynolds clubs had been given a clean bill of health by Detective Inspector Sutton. As far as Dr. Kenny was aware, Detective Chief Superintendent Ted Murphy was the head of the National Drugs Unit. If Mr Reynolds was claiming to have liaised closely and consistently with the Drugs Unit one would have expected that he would have been aware who was the head of the unit. It was not unnatural therefore that Dr. Kenny would check this out. He did so and it was confirmed that the head of the National Drugs Unit was indeed Detective Chief Superintendent Ted Murphy who in turn informed him that no night club received a clear bill of health as such (my emphasis) from the National Drugs Unit although the systems of control in place in the POD and initiated by the gardai were endorsed by them. Accordingly, it was in this context that Dr. Kenny subsequently prepared the memorandum which, it is accepted, was for his own benefit only. There is no doubt that it was certainly within the ambit of his responsibilities as a member of the Commission for Dr. Kenny to draw up at this stage a final memorandum on the subject matter of his concerns for the purpose of his personal deliberations. In his affidavit before the High Court he averred that he had done this in order to clarify in his own mind whether the up-to-date information altered in any way the view which he had reached after speaking with the Chairman on 22nd September, 1999. He concluded that the position had not changed and that, having regard to the fact that there was no evidence linking Mr. Reynolds or any other Director 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 Applicants in any way or to draw any adverse inference in relation to the character of the Applicant company based on the "drugs issue". Accordingly, at the meeting of the Commission on 11th October, 1999 he did not raise or take into consideration the "drugs issue". I think it is appropriate to recall again at this stage that actual bias or a breach of fair procedures are not in issue. Dr. Kenny was in my view perfectly entitled, as any adjudicator coming to a final decision, to draw up a memorandum of matters material to his decision before coming to a final decision. For the purpose of his reflection he was entitled to express those concerns and frame them in whatever way he thought appropriate. As I have already pointed out these were not matters external or extraneous to the decision which Dr. Kenny had to take, they were very much in point. In my view, the memorandum in question does not support the contention of pre-judgment by Dr. Kenny as alleged by the Appellants but is merely evidence of the manner in which he deliberated and considered and enquired into one of the issue which potentially could effect his decision. It is not in my view evidence of objective bias or pre-judgment. If Dr. Kenny had taken into account these matters as evidence of bad character on the part of the Appellants when making his decision on the award of the radio licence without giving the Appellants an opportunity to meet the case made against them then the question of fair procedures would seriously arise on the basis indicated by Keane C.J. in the extract from his judgment in the Orange case cited above. It would not be a case of bias but a case of breach of fair procedures. Indeed at one point Counsel for the Appellants in his submissions to the Court stated that if Dr. Kenny had openly canvassed his concerns with his clients he would arguably have no concern. In the event Dr. Kenny, as already stated, had asserted in his affidavit that he did not take account of these concerns when making his decisions and the Appellants have not pursued presumably for this reason, any question of a breach of fair procedures in this appeal. The submission that the document shows that he had not abandoned his earlier pre-judgment is misconceived since, as I have found, there was no earlier pre-judgment on his part.

85. Taking Dr. Kenny's conduct as a whole I am of the view that the evidence before the High Court disclosed no more than that he had legitimate grounds for making enquiries concerning the so-called "drugs issue" with particular regard to the Appellants application. His conduct was consistent with making enquiries on a matter which properly fell to be considered in the decision making process. To this extent I think the Appellants have wrongly relied on the investigation of matters adverse to the Appellants but relevant to the decision making process as a basis for alleging objective bias.

86. In any event, I am of the view that the conduct of Dr. Kenny taken as a whole would not give rise in the mind of a reasonable person that Dr. Kenny had prejudged the issue nor are there grounds upon which there could be a reasonable apprehension of bias.

87. Finally, the Appellants have relied on two other matters in support of their submissions. These were, firstly, the failure of Dr. Kenny to respond to the long list of questions put to him in the letter written by Mr Reynold's solicitors in the wake of the publication in the Sunday Tribune. Counsel for the Appellants criticised the fact that

88. Dr. Kenny declined to respond to those questions on the grounds that they had been instructed to issue defamation proceedings although no such proceedings had been issued to date. Secondly, there were inaccuracies and inconsistencies between the affidavit of Mr O'Keeffe (where he gives an account of events based on what he was told by Dr. Kenny) and the affidavit of Dr. Kenny himself. Both affidavits were filed in these proceedings. The Respondents dispute the existence of inaccuracies or inconsistencies. These matters arose subsequent to the contested decision and obviously, the conduct of Dr. Kenny prior to that decision. They do not throw any light on that conduct or on Dr. Kenny's state of mind at the time. Therefore, they are not relevant to the manner or circumstances in which the decision was taken.

89. For all the foregoing reasons, I am of the view that the learned High Court Judge was correct in holding that there was no pre-judgment or grounds for objective bias concerning

90. Dr. Kenny and would disallow the appeal.