Supreme Court of Ireland Decisions

 
THE SUPREME COURT

Murray J.

Geoghegan J.

Fennelly J.

142/03

BETWEEN/

CARLOW/KILKENNY RADIO LIMITED AND KILDARE RADIO LIMITED AND CARLOW/ KILDARE RADIO LIMITED

Applicants/Appellants

and THE BROADCASTING COMMISSION OF IRELAND

Respondent/Respondent

JUDGMENT of Mr. Justice Geoghegan delivered the 31st day of July 2003 [Nem Diss]

This is an appeal from the order of the High Court (Kearns J.) made on the 25^th of March, 2003 refusing a motion for discovery in so far as it related to eleven of the thirteen categories of documents in respect of which discovery was sought. The appellants are the applicants in this judicial review proceeding in which they are seeking to quash two decisions of the respondent awarding sound broadcasting contracts on the FM Band in counties Carlow/Kilkenny to the CK Broadcasting Limited and in County Kildare to County Kildare FM Radio Limited respectively. The first-named applicant and appellant was a disappointed applicant for the County Carlow/Kilkenny contract and the second-named applicant and appellant was a disappointed applicant for the County Kildare contract. The third-named applicant/appellant allegedly has a controlling interest in or at the very least has a strong connection with the other two applicant companies and it formerly held the franchise for the Carlow/Kildare area which no longer exists as a franchise unit. The important factual background to the judicial review application is that CK Broadcasting Limited and County Kildare FM Radio Limited did not previously have any franchise to broadcast in respect of the counties of Carlow, Kilkenny or Kildare. There is no right of appeal from the decision of the Broadcasting Commission of Ireland and, therefore, the only way that its decisions can be challenged is by way of judicial review. That is what the applicant/appellants ultimately intend to attempt to do in this case. For that purpose they are seeking discovery of the categories of documents numbered 1 to 11 the subject matter of this motion before the High Court. These documents as set out in the notice of motion are as follows:

"1. All documents which pertain to the decisions made by the respondent on or about the 14^th of October, 2002 in relation to the awarding of the Carlow/Kilkenny Radio franchise.

2. All documents which pertain to the decision made by the respondent on or about the 14^th of October, 2002 in relation to the awarding of the Kildare radio franchise.

3. All documents which pertain to the reasons why the respondent refused to award the licences for Carlow/Kilkenny and/or Kildare to the applicants.

4. All documents which pertain to the consideration given by the respondent to section 6 of the Radio and Television Act, 1988 and section 60 of the Broadcasting Act, 2001.

5. The minutes and records of all meetings held by either the Executive or the members of the respondent and to all (or any) documents circulated at any such meeting, or to any reports generated by the Executive of the respondent, arising out of the respondent's consideration of the awarded licences for Carlow/Kilkenny and/or Kildare.

6. The written submissions and confidential appendices of all applicants, the Feedback Reports in respect of all unsuccessful applicants, and any Feedback Reports furnished to the successful applicants in respect of the award of the licences for Carlow/Kilkenny and/or Kildare.

7. All documents which pertain to the assessment by the respondent of the third-named applicants' previous track record.

8. All documents which pertain to the issue of ownership and control of the applicant companies considered by the respondent.

9. All documents which pertain to the conflict of interest of Dr. Colm Kenny, one of the members of the respondent's board and also all documents which pertain to the respondent's knowledge of Dr. Kenny's commitment/professional involvement or commercial involvement in, or commercial links with, one of the shareholders of one of the participants in the consortium behind CK Broadcasting Limited (trading as KCLR).

10. All documents which pertain to the criteria, or to the weightings (if any) attached to such criteria, which the respondent used to assess all applications for the Carlow/Kilkenny licence and also the Kildare licence.

11. All documents which pertain to the criteria, or to the weightings (if any) attached to such criteria, used by the respondent to evaluate all presentations."

It is trite law that judicial review is not concerned with the correctness of a decision but rather with the way that the decision is arrived at. It follows that the categories of documents which a court would consider were necessary to be discovered will be much more confined than if the litigation related to the merits of the case.

I will be reviewing the relevant law in somewhat more detail later in this judgment. It is sufficient at this stage to point out that it would appear to make little or no difference whether there are different legal principles applicable to discovery in judicial review proceedings from discovery in ordinary plenary proceedings as seemed on one interpretation to be the view of Carswell J. (as he then was) in In re Glor na nGael's Application [1991] N.I. 117 and relied on by the learned High Court judge or whether the same principles of discovery apply in each case. It is difficult to conceive of circumstances in which a different result would be achieved.

But before returning to the applicable law, I think it important to set out some more factual background. The judicial review application itself is grounded on a statement of grounds dated the 20^th of January, 2003 verified by an affidavit of James Reddy of the same date. In the introductory paragraphs he explains that he is the executive chairman and director of Carlow/Kildare Radio Limited and that that company operated a local radio station known as "CKR" in the Carlow/Kildare area under licence from the respondent. The first licence was for seven years and lasted from 1989 to 1996. That licence was renewed until 2003. He claimed in paragraph 4 of the affidavit that the station was "highly successful" and that it had average daily listeners of approximately 55,000 during 2001. He then deals in some detail with all matters relating to the applications for the two new licences in paragraphs 5 to 23 inclusive of the affidavit. The respondent does not take issue with any of those facts.

The notice of appeal sets out four grounds of appeal. They are:-

"1. The learned High Court judge erred in law and in fact or, alternatively, on a mixed question of law and fact in holding that discovery of the said categories of documents was not relevant or necessary or appropriate in judicial review proceedings.

2. The learned High Court judge erred in law and in fact or, alternatively, on a mixed question of law and fact in holding that discovery should not be ordered in a judicial review matter where the irrationality and/or unreasonableness of the respondent's decisions was the substantive issue in the proceedings.

3. The learned High Court judge erred in law and in fact or, alternatively on a mixed question of law and fact or, alternatively, misdirected himself in relying on the decision of Mr. Justice Carswell in In re Glor na nGael's Application [1991] N.I. 117 a decision which case was not applicable to Irish jurisprudence.

4. The learned High Court judge erred in law and in fact or, alternatively, on a mixed question of law and fact or, alternatively, misdirected himself in holding that the definition of irrationality is similar in this jurisdiction compared to that in Northern Ireland."

The operative part of the judgment of Kearns J. in the High Court given ex tempore on the 25^th of March, 2003 reads as follows:

"In the present case the respondent has set out a 'Feedback Report' setting out the reasons for the respondent's decision.

In this context I would approve the decision of Mr. Justice Carswell inIn re Glor na nGael's Application [1991] N.I. 117. There is nothing before the court which indicates that the evidence put before the court was inaccurate or false; nor is there any allegation of a procedural irregularity and the applicant's primary argument is irrationality which requires a very high threshold as the Supreme Court indicated in the Meteor/Orange case. I note further that there is no further dispute on facts and in the absence of such conflict I am not prepared to accede to the applicant's request for discovery in respect of categories 1 – 11."

The judgment of the learned High Court judge and the reasoning in that section of his judgment would seem to be impeccable. But in deference to the extensive arguments at the hearing some elaboration is desirable.

Apart from the fact that none of the salient facts are in dispute on the affidavits, counsel for the respondent point out that paragraph 9 of the main replying affidavit of Mr. Michael O'Keeffe of the respondent makes it clear that access to every aspect of the process from the written submissions right through to the oral hearing and subsequent written questions were publicly available through the respondent's office and in other ways such as through its website etc. The only exception to this was commercially sensitive and confidential information which was permitted to be supplied in confidential annexes attached to the relevant bids. It is strongly submitted on behalf of the respondent that there is no evidence or material before the court which indicates or even suggests that the evidence tendered by affidavits on behalf of the respondent was in any respect inaccurate. Therefore, in so far as any case is being put forward on the basis of unreasonableness or irrationality it would be wrong to make an order for discovery as discovery would be nothing more than a fishing exercise. That has always been forbidden by the courts irrespective of whether the discovery is sought in plenary proceedings or in judicial review proceedings. On the other hand in so far as procedural misconduct is alleged that issue can be litigated without discovery of documents. In their written submissions counsel for the respondent cited in this connection a passage from the judgment of Carswell J. in the Glor na nGael case which made clear that an order for discovery of documents concerning the issue of unreasonableness in relation to the manner in which a decision had been reached would not be made unless there was material which indicated that the evidence put before the court was inaccurate or false. It is pointed out that the same judge also took the view that discovery was not required to dispose of allegations relating to procedural irregularity and that furthermore allegations of breaches of the rules of natural justice went to the matter of procedure and that discovery was not therefore necessary.

It is not necessary to decide whether all the statements of Carswell J. in the Glor na nGael case in relation to discovery and judicial review generally should be accepted in this jurisdiction. What is clear is that his decision in the case and the reasons for it cannot be criticised. It is somewhat unfortunate that partly as a consequence of the respondent relying on it so heavily in the High Court and the fact that it is the only case mentioned by the learned High Court judge in his ex tempore judgment, the appellants give the impression both in their written and oral submissions that it was some kind of anomalous decision unsupported by any other case law. This is quite incorrect. Not only does the decision have the approval of the Court of Appeal of Northern Ireland in two subsequent cases Re McGuigan's Application [1994] N.I. 143 and R. v. Secretary of State ex parte Rooney [1995] N.I. 398, but in both cases the leading judgments of Hutton LCJ are soundly based on a number of English authorities referred to in some detail. A helpful review of these cases is contained in an unreported judgment of Ó Caoimh J. delivered the 21^st of February, 2002 in Shortt v. Dublin City Council. It would not be appropriate to go into the facts of that case or to comment in any way on the correctness of the decision as it may be under appeal to this court, but in a very careful review of the case law Ó Caoimh J. cites (inter alia) a passage from the judgment of Sir Thomas Bingham M.R. (as he then was) in the unreported case of R. v. Secretary of State for Health, ex parte Hackney London Borough (29^th of July, 1994).

"The basic approach is that discovery and production will be ordered in judicial review proceedings where they are necessary for disposing fairly of the application but not otherwise. The rules themselves provide no guidance as to when discovery should be treated as necessary for disposing fairly of an action or application, but over the years a practice has developed, the broad principles of which are clearly understood, even if the application of those principles inevitably give rise to controversy in individual cases. It is undesirable to attempt any precise definition of the existing practice, but I think it is broadly true to say that discovery will be regarded as necessary for disposing fairly of the action, or application, if a party raises a factual issue of sufficient substance to lead the court to conclude that it may, or will, be unable to try the issue fairly, fairly that is to all parties, without discovery of documents bearing on the issue one way or the other.

In the ordinary inter partes civil action the plaintiff usually makes a series of factual averments which may well be challenged, but which are not usually sufficiently plausible to raise issues calling for discovery. It is not open to a plaintiff in a civil action, or to an application for judicial review, to make a series of bare unsubstantiated assertions and then call for discovery of documents by the other side in the hope that there may exist documents which will give colour to the assertions that the applicant, or the plaintiff, is otherwise unable to begin to substantiate. This is the proscribed activity usually described as 'fishing': the lowering of a line into the other sides waters in the hope that the net may enclose a multitude of fishes, the existence or significance of which the applicant has no rational reason to suspect."

That statement of principle is easily recognisable in this jurisdiction also and would seem to clearly represent Irish law. In expressing this view I am not overlooking the arguments which were put forward on behalf of the appellants based on dicta in the judgments of this court in O'Keeffe v. Bord Pleanála [1993] 1 I.R. 39 and I will return to them in due course. At this stage however I think it useful to summarise what the basic complaints of the appellants are or at least those that are relevant to the discovery application. I do not intend, of course, to express any view on the merits or otherwise of any of these complaints and in so far as I set them out I am not purporting to make any judgment as to their order of importance.

The first complaint which I would mention is that the Commission was unjustified in forming an adverse view of the ownership and control aspects of the appellants' application. As I see it, that is a matter for argument at the hearing of the judicial review based on the information before the court which is not really in dispute and, therefore, there is no need whatsoever for discovery of documents in connection with it.

The second complaint is connected with the first. It is argued on behalf of the appellants that the respondent should not have brought into account ownership and control problems under more than one heading that is to say under the heading "ownership and control" and under the heading "track record". Again, this is a matter for argument at the hearing. There is no factual dispute which needs to be resolved in order to determine this issue and it is not, therefore, apparent as to how the production of documents even if there were any further documents undisclosed could add to or subtract from the validity of the argument.

The third complaint is also linked to the first two. It is neatly encapsulated in ground No. 10 in the statement required to ground the application for judicial review. It reads as follows:

"The findings of the respondent and in particular its statement that 'the company's failure to resolve difficulties in ownership and control matters over a considerable period of time was not viewed positively by the Commission' shows that it attached a disproportionate weight to this issue. Moreover such a statement is not transparent. Moreover the respondent did not seek to justify this statement any further. No reasons are given for this statement and there is a lack of objective justification for this issue."

This allegation is replied to head on in paragraph 6 of the second affidavit of Michael O'Keeffe, Chief Executive of the Broadcasting Commission of Ireland. That paragraph reads as follows:

"I beg to refer to paragraph (sic) 10 in the statement required to ground the application for judicial review. I say that section 5/6 of the Radio and Television Act, 1988 gives the Commission discretion to place greater emphasis on one or more of the criteria specified in section 6(2) of the Act and whenever it is the Commission's intention to do so it shall specify such intention to each applicant. In this instance, I say that the Commission did not place greater emphasis on one or more of the criteria as specified, and that therefore, no such intention was notified to the applicants."

The issue of whether and to what extent greater emphasis may be attached to one or more of the criteria in the subsection does not appear to arise having regard to this paragraph and Mr. O'Keeffe's statement has not been put in issue. It would seem therefore that discovery of documents in relation to this matter would be both irrelevant and inappropriate.

In different parts of Mr. Reddy's affidavits there are allegations that the respondent in preferring aspects of the winning applications to the equivalent aspects of the appellants' applications were acting in some way arbitrarily and/or capriciously and, indeed, irrationally and unreasonably. But no prima facie case has been made in the affidavits to support any such allegations and it would be quite wrong for this court to permit a fishing exercise by granting an order of discovery of the documents which for all practical purposes would be relating to issues as to the merits of the respective applicants' applications a matter with which the judge hearing the judicial review application is not concerned.

There are two specific factual allegations which are made on affidavit by Mr. Reddy and are totally contradicted on affidavit by Mr. O'Keeffe. One is that the successful applicant in respect of the Carlow/Kilkenny franchise was given a longer time to make its presentation than the strict time laid down by the rules. Secondly, it is alleged that video cassettes furnished by the respondent as purporting to be an accurate record of the open presentations which were held had been substantially edited and are not accurate. There has been no application to cross-examine Mr. O'Keeffe in relation to this and the onus of proof would be on the appellants. On all the established English and Northern Ireland jurisprudence on discovery and judicial review and, indeed, on our own jurisprudence in relation to discovery generally the mere making of an unsubstantiated allegation will not entitle a party to discovery. Otherwise it would be quite simple to mount a "fishing" exercise in almost any case. But it is particularly inappropriate in a judicial review application where the merits are not an issue.

I think that it would be fair to say that although there are other complaints in this judicial review application they are less significant. For instance in relation to the bias allegation by reason of Dr. Colm Kenny being a member of the Commission deciding the issues it is not suggested that there was actual bias. An argument as to apparent bias can be made without the aid of any documents. Discovery would not seem to be relevant.

I turn, finally, to the argument made on behalf of the appellants that Irish jurisprudence in relation to discovery in judicial review applications is quite different from the English and Northern Ireland jurisprudence to which I have referred in that as they suggest O'Keeffe v. Bord Pleanála cited above endorsed a most liberal regime of discovery where judicial review of an administrative body's decisions is concerned. The first point to be made is that the judgment of the court must be taken to be the judgment of Finlay C.J. with which Griffin J., Hederman J. and Lynch J. agreed. McCarthy J. wrote his own concurring judgment but in so far as he expresses any views that are not contained in the judgment of Finlay C.J. they must be regarded as obiter dicta. The next important point to be made about that case is that there was no issue debated in it as to the circumstances in which discovery will be ordered in a judicial review application. The established English and Northern Ireland jurisprudence which would seem to be in conformity with our own principles of discovery is to the effect that discovery will not normally be regarded as necessary if the judicial review application is based on procedural impropriety as ordinarily that can be established without the benefit of discovery. Likewise if the application for judicial review is on the basis that the decision being impugned was a wholly unreasonable one in the "Wednesbury" sense, discovery will again not normally be necessary because if the decision is clearly wrong it is not necessary to ascertain how it was arrived at. Where discovery will be necessary is where there is a clear factual dispute on the affidavits that would have to be resolved in order properly to adjudicate on the application or where there is prima facie evidence to the effect either that a document which ought to have been before the deciding body was not before it or that a document which ought not to have been before the deciding body was before it. What happened in O'Keeffe v. Bord Pleanála was that a general order for discovery had been obtained and various documents from that discovery were produced in court without making them evidence in the appropriate way or without any clarification that they were agreed evidence or without any clarification as to whether they were documents which were properly before the board when it made its decision or not. The judgments of the court are all in that context. What Finlay C.J. and indeed McCarthy J. were saying was that a decision of Bord Pleanála could not be impugned on the basis of irrationality without the court knowing what exactly was before the board and being able to assess whether in the documentation before the board there was evidence or information to support the decision of the board. In my view, O'Keeffe v. Bord Pleanála is certainly not authority for the proposition that once leave is granted to bring an application for judicial review against an administrative body, discovery must automatically be granted.

In this particular case the Broadcasting Commission has been entirely up front in disclosing both its procedures and the documentation which was before it apart from confidential information which each applicant was entitled to give. There is nothing to indicate either the giving of false information or the improper withholding of information that might justify discovery nor is there any relevant conflict of fact on the affidavits that would justify it.

I agree, therefore, with the view taken by the learned High Court judge and I would dismiss the appeal.