Maigueside Communications Ltd, New Limerick FM Ltd, Limerick 95 FM Ltd and Michael Richardson, John Franks and Wendi Ferris-Richardson (Trading as Big L Radio Limerick)(applicants) v The Independent Radio and Television Commission and the Minister for Transport, Energy and Communications (respondents).

Judicial Review - Invitation to apply for local radio contract - Two stage procedure - Shortlist compiled on foot of written application - successful candidate picked from shortlist - Whether respondent obliged to give reasons as to why applicants did not make shortlist - Whether applicants' had legitimate expectation that once they complied with guideline for written application they would be selected for second stage - Whether decision making procedures were fair - Independent Radio and Television Act 1988 (No 20).

The High Court (Mrs Justice McGuinness); judgment delivered 18 July 1997.

An administrative body does not always have to give reasons for its decisions. The court has to distinguish between situations where there is a competition between applicants, for a licence or contract and one particular applicant is chosen, and those where the obtaining of the licence or contract is open to a large number of individuals and one particular applicant is refused.

The High Court so held in refusing the applicants an order of certiorari in respect of a decision of the first respondent, whereby it did not shortlist the applicants for the second stage of a competition for a local radio contract in Limerick.

Paul Callan SC, Liam McKechnie SC and James Gilhooly BL for the applicants; Adrian Hardiman SC, John Coughlan SC and Emily Egan BL for the first respondent.

Mrs Justice McGuinness said that the statutory provisions relating to the making of applications for sound broadcasting contracts and the manner in which they were to be considered, were set out in the Independent Radio and Television Act 1988. The first respondent had been established by the 1988 Act for the purpose, inter alia, of entering into contracts for the provision of local radio services. In January 1997 the first respondent had sought, by way of public advertisement, applications from those who wished to apply for a local broadcasting contract in the Limerick area. The applicants in these proceedings all applied separately for the said contract. A guideline for the manner in which applications should be presented was sent to all intending applicants. The guideline stated that the applications were being sought in accordance with the provisions of the 1988 Act and that, in determining the most suitable applicant, the first respondent was obliged to have regard to the suitability of the applicants, again pursuant to the 1988 Act. The guideline went on the specify that the decision making process would be in two stages. The first would involve the first respondent making an assessment of each written submission with a view to qualifying applications for the second stage. It stipulated that the decision as to which applicants qualified for the second stage was entirely within the discretion of the first respondent. It was stated that at the second stage, groups who had not been eliminated during the first stage would be invited to make a oral presentation at a public hearing. A decision would then be taken by the first respondent as to the successful candidate.

Nine applications were received in total and on 10 March 1997 the first respondent issued a press release listing the applicants and outlining the two stage procedure. On 20 March 1997 the first respondent selected a short list of four applicants to proceed to the second stage. This list did not include any of the applicants in the present proceedings, who were subsequently informed they had been unsuccessful. The applicants obtained leave to judicially review the first respondent on the grounds that it had acted unlawfully and unreasonably in: failing to give any or due consideration to the applicants' applications; failing to give any reasons sufficient to enable the applicants or the court ascertain whether the first respondent's powers had been validly or lawfully executed; failing to accord the applicant a fair hearing; and failing to have proper regard to the applicants' legitimate expectation that subject to their applications' compliance with the published guidelines, they would be considered pari passu with the other applicants. The proceedings against the second respondent were dismissed by order of the High Court on 6 May 1997.

Mrs Justice McGuinness first referred to the applicants' claim of legitimate expectation, which she said could have little basis in fact. Reiterating that the guideline to applicants and press release had both set out the two-stage process, Mrs Justice McGuinness said that even if the first respondent had at all times previously granted oral hearings to every applicant, that in itself did not create a legitimate expectation that all future competitions would be run that way. Applying the decision in Egan v The Minister for Defence and Others (Unreported, High Court, Mr Justice Barr, 24 November 1988), Mrs Justice McGuinness said even an entrenched practice did not amount to a legitimate expectation.

With regard to the applicants' remaining grounds, Mrs Justice McGuinness said that it had been argued for the applicants that public bodies had to act fairly and judicially in making decisions and that they had to act openly by making clear the reasons for their decisions, at least when they were requested to do so. The applicants submitted that while the first respondent's own standing orders provided that the minutes should provide an extended record of the discussions which took place, there was only a bare record of the decision taken to select four applicants for the second stage . While the applicants could not put forward concrete evidence of unfair procedures in making their selection, they submitted that the absence of reasons prevented them from knowing whether the procedures employed had been fair. In reply, the respondent submitted that decision making bodies were by no means always required to give reasons for their decisions.

Mrs Justice McGuinness accepted that, as it was established in McCormack v The Garda Siochana Complaints Board and Others (Unreported, Mr Justice Costello, High Court, 28 January 1997), the giving of reasons by a decision-making body was not necessary in all cases. The court had to distinguish between situations where, for instance, the obtaining of a licence was in theory open to a large number of individuals and one individual was refused, and when there was a competition between applicants and one particular applicant had to be chosen and all others excluded. In the present case the nature of the first respondent's statutory function was of choosing one applicant from among a pool of applicants. In conclusion Mrs Justice McGuinness was satisfied that the provisions of the 1988 Act had been closely complied with by the first respondent. While the applicants had suffered a detriment, this had resulted, not from the first respondent's failure to give reasons, but from the actual rejection of their applications.

Solicitors: Dermot G. O'Donovan & Partners (Limerick) for the applicants; Ivor Fitzpatrick & Co. (Dublin) for the first respondent.