Meteor gets all-clear as court rules in its favour

A Supreme Court decision yesterday has cleared the way for the award of the State's third mobile phone licence to Meteor Communications. The five-judge court unanimously upheld an appeal by the Office of the Director of Telecommunications Regulation against a High Court finding that the regulator's decision to award the licence to Meteor was objectively biased and unreasonable.

The decision has brought to an end lengthy and expensive litigation, initiated by British telecommunications giant Orange Communications, the only other bidder for the licence.

Meteor has claimed the legal proceedings have cost it millions of pounds. Although the regulator, Ms Etain Doyle, announced in October 1998 her decision to award Meteor the licence, it has been delayed pending the outcome of the action.

In the High Court in October 1999, after a 51-day hearing, Ms Justice Macken quashed the award of the licence to Meteor and remitted the matter to the regulator for reconsideration. She found the decision awarding the licence to Meteor was objectively biased and unreasonable and ruled the regulator failed to give Orange adequate reasons for the refusal of the licence and this failure was wrong in law.

Both the regulator and Meteor appealed to the Supreme Court while Orange cross-appealed aspects of the High Court ruling, including the finding of no actual bias by the regulator.

Yesterday, all five judges allowed the appeal and dismissed the cross-appeal. They found no evidence on which the High Court could have found objective bias or unreasonableness on the part of the regulator. They also criticised the length of court time which the case had taken.

In his 148-page judgment, with which Mr Justice Murray agreed, the Chief Justice, Mr Justice Keane, said that since there was "not a scintilla of evidence" that the regulator, her staff or any of the consultants retained by her to evaluate the bids of Meteor and Orange had any interest whatever "of a pecuniary or other nature" in the outcome of the tender procedure, "there was no basis in law or on the evidence for the finding of objective bias made by the trial judge".

Orange's argument that aspects of the procedures adopted by the bids' evaluators - as distinct from their specific findings - would support a finding of either objective or actual bias was "equally unsustainable". In particular, Orange's claim that there was some form of "crude and xenophobic" prejudice towards Orange because it was a British company "strains credulity to breaking point" and was "wholly unjustified", the Chief Justice said.

He said a reference in the evaluation report that Meteor had given its application "the Irish touch" was advanced as evidence of "the same crude and xenophobic hostility" to the Orange bid. The fact that a particular bidder was better acquainted with the circumstances of the Irish market and had sought to tailor its bid more closely to Irish conditions than the other bidder was a factor "which the director was perfectly entitled to take into account".

He said the most serious allegation levied by Orange was that the marks awarded had been deliberately manipulated to ensure that Meteor was awarded the licence. An official who was alleged to be part of "this sinister conspiracy" had never had the matter put to him while giving evidence in the High Court and therefore had no opportunity to respond to it.

He had no doubt that the charge was "wholly unwarranted and unsupported in any way by the evidence before the trial judge". On the argument of unreasonableness in the decision-making process, Mr Justice Keane stressed that the High Court should have recognised that the Oireachtas had entrusted the decision on the third mobile licence to a body with a particular level of expertise and specialised knowledge, which the court had not, to draw on such specialised knowledge as the regulator had in retaining the services of the Danish consultants, AMI.

He had no doubt that "wholly insufficient weight" was given to that aspect of the case both in the High Court decision and in Orange's submissions to the Supreme Court. The regulator could have adopted a procedure which could have left an unsuccessful applicant in a far greater state of uncertainty than Orange regarding why it failed to get the licence.

The regulator's comparative bidding procedure had met the requirements of being open, nondiscriminatory and transparent and there was substantial evidence, "nowhere dealt with in the judgment under appeal", by two eminent and highly qualified experts that the procedures adopted were in accordance with best international practice.

The Chief Justice added that Orange apparently had no difficulty with the procedures until it discovered the regulator was proposing to rank it second. Concluding, Mr Justice Keane noted the case had occupied "a wholly inordinate degree of court time", due in part at least to the absence of appropriate case management structures in the High Court at the time of the hearing.

Mr Justice Barron was satisfied Orange was given sufficient reasons for the regulator's decision to place it second. When Orange received the summary report, it knew perfectly well its decisions were a mistake and the cause of it losing the licence. To a large extent, many of Orange's allegations of bias and unreasonableness arose from a refusal to accept the clear rules of the competition for the licence, he said. Mr Justice Geoghegan said there was no justification for a finding of bias of any kind. He also found that an appellate court could not reconsider the actual markings awarded, by which he meant all the steps leading up to the sending to the regulator of the final evaluation report. It followed that the High Court judge should not have embarked on considering issues of "so-called reasonableness" on which she found in favour of Orange.

He also found that the correspondence from the regulator to Orange gave quite sufficient reasons for Orange's failure to get the licence. In his view, the simple statement that Orange was not the winner of the competition "was the most substantive reason one could expect to get". Mr Justice Murphy said the evidence was "wholly inadequate" to prove the fact of bias without which a reasonable observer could not prove its conscious or unconscious operation.