Supreme Court dismisses appeal for discovery where no prima facie case exists to challenge the respondent's affidavit.

THE SUPREME COURT

Murray J.

Geoghegan J.

Fennelly J.

94/03

BETWEEN/

KILKENNY COMMUNITY COMMUNICATIONS COOPERATIVE SOCIETY LIMITED

Applicant/Appellant

and

THE BROADCASTING COMMISSION OF IRELAND

Respondent

AND (BY ORDER OF THE HIGH COURT) CK BROADCASTING LIMITED

Notice Party

JUDGMENT of Mr. Justice Geoghegan delivered the 31st day of July 2003

This is an appeal from a judgment and order of the High Court (Quirke J.) refusing a motion for discovery in a judicial review

application. The background to the judicial review proceedings is that the appellant was a disappointed applicant to the respondent

the Broadcasting Commission of Ireland for a sound broadcasting contract for the provision of a local sound broadcasting service on

the FM Band in counties Carlow/Kilkenny. This was a newly created franchise area. The applicant/appellant had already held the

sound broadcasting contract for the area of the County of Kilkenny which until now was a separate area of its own. It was an express

term of the appellant’s franchise contract that there was no right of renewal once its seven year term expired in September 2003.

That seven year term was an automatic renewal of a previous seven year term commencing in 1989. The contract for the extended

area has been awarded to the above-named notice party CK Broadcasting Limited. The judicial review application which was brought

pursuant to leave, sought a number of different reliefs on a number of different grounds but what is relevant to this discovery

application is that in the course of the reasons given by the respondent as to why the applicant was not successful, the respondent

asserted that the appellant did not appear to have the same level of experience, expertise and knowledge relevant to the specified

local area as the successful applicant group. In paragraph 32 of his grounding affidavit, Mr. James J. Brett, a director of the appellant

company commented on this assertion in the following way:-

“This is totally irrational and flies in the face of the material before the Respondent. The record of the applicant in Kilkenny

speaks for itself. The Applicant has proved its experience, expertise and knowledge quite simply by running one of the most

successful local radio stations in the country. Again it will be recalled that Kilkenny represents almost 2/3 of the modified area.

It is the CK bid which exhibits an absence of experience, expertise and knowledge relevant to the specified local area. CK has

no representation from Carlow and their Kilkenny representation consists of two persons, John Purcell and Susan Mosse, the

latter of whom is a native of the USA. In such circumstances it is utterly bizarre for the respondent to state that it was the

applicant which was deficient in local knowledge, experience and expertise.

In paragraph 34 of his replying affidavit Mr. Michael O’Keeffe, Chief Executive of the respondent stated the following:

“In addition, for reasons for which the applicant cannot be criticised, paragraph 32 of Mr. Brett’s affidavit is not accurate in so

far as it deals with the alleged lack of experience, expertise and local knowledge of the successful applicant. In this respect

page 10 of the Guide to Submissions provides that commercially sensitive information can be provided in a confidential annex.

This facility is available to all applicants in every licensing process. I say that, the successful applicant indicated to the

Commission in such a confidential annex, that, in addition to the persons mentioned above, it would benefit from the

involvement of two people with extensive experience, expertise and local knowledge. Because of the sensitive nature of this

information, the Commission does not wish to put it before the court in affidavit form. However, naturally the Commission will

take whatever steps are ordered in this regard by this Honorable Court.”

It is in this context that the notice of motion sought the following discovery order.

“An Order pursuant to the provisions of O. 31, r. 12 of the Rules of the Superior Courts, 1986 as amended and substituted by

S.I. No. 233 of 1999 requiring the Respondent to make discovery on oath of all documents, including where appropriate

memoranda, notes and draft documents, which are or have been in its power, possession or procurement, including such

documents and drafts of documents which are stored electronically, touching on or concerning:

(a) Such part of the annex of the bid of KCLR – FM as identifies the ‘two people with extensive experience, expertise and

local knowledge’ that are referred to at paragraph 34 of the affidavit of Michael O’Keeffe sworn on behalf of the

respondent herein on the 27th day of January 2003. It should be noted that the Applicant does not require to see the

whole of the annex, but only such parts of it which relate to the two persons in question.”

In an ex tempore judgment delivered by Quirke J. on the 4th of March, 2003 the learned High Court judge said the following:

“In so far as the grounds which are relied upon, the grounds of rationality and arbitrary (sic) (presumably intended to be

irrationality and arbitrariness) are concerned, I am satisfied that the principles set out in the cases of O’Keeffe v. An Bord

Pleanála and Keegan v. Stardust it would apply to the substantive issue of irrationality in this case when that is heard. When I

say ‘to the substantive issue in this case’ I mean the substantive case as pleaded, and that is to say that the decision of the

respondent was irrational within the meaning that has been ascribed to that by both the O’Keeffe case and the Keegan v.

Stardust case.

In summary that would mean that the matter of which the Court will be determining is whether in summary as I have said the

respondent when making its decision had or did not have before it information or evidence upon which it could reasonably

make the decision which it made. That is the substantive question that it will be seeking to determine, whether or not when

making its decision it had before it information or evidence upon which it could reasonably make that decision. It will not be in

any way considering the merits of the decision as made.

Having considered the affidavits of the parties in this case both in the substantive proceedings and in this immediate

application, I cannot see how discovery of the identity of two persons referred to in the annex can in any way progress that

particular question. I say that, because I do not see how the identity of these two persons will bear in any way upon the

question as to whether or not the Commission had before it when it was making its decision evidence that on which it could

reasonably make the decision which it made. The documents which were produced to the authority which were called

‘annexes’ and this document which was called an ‘annex’ was sought and obtained on a confidential basis as being

commercially sensitive. The respondent was entitled to so seek it and to so obtain it. Mr. McDermott says that his client

believes that the document may identify a member or perhaps two members of its staff as persons prepared to work with the

notice party if the notice party were to be successful in their bid, and indeed that they were prepared apparently to be part

of the bid. He says that this in turn will be evidence of unlawful activity, that is conspiracy on the part of the notice party and

of the staff concerned to induce a breach of contract and to in fact break their contract.

I have no evidence of the nature of the contract of employment which exists or subsists between the applicant and its

employees and therefore the only evidence I do have in relation to the nature and extent of that contract is that it will almost

certainly expire at the end of the franchise period which is in September. I have no evidence therefore of how the real or

anticipated breach will occur or whether there could be such a risk in the long term or in the short term. I know nothing

whatsoever. I have no evidence of the nature and the extent of the contract and indeed I have no evidence that a person

affected by such a contract would not be entitled to enter into contractual relations with another party to commence at the

expiration of his or her existing contract.

So in those circumstances without any evidence of the nature and extent of the contract, without any evidence that in fact a

breach is to be anticipated but most importantly of all because this is not a matter that will be concerning the court because

it is not pleaded I do not see that this is a matter which can be relevant to the issue which the Court will be determining

which is whether or not the Commission had before it when it made its decision evidence on which upon it could reasonably

arrive at its decision.”

I have chosen to set out that lengthy passage of the judgment of the learned High Court judge because I believe that it cannot be

improved upon. It correctly sets out the reasons why it is appropriate to refuse the discovery sought.

In page 3 of its written submissions to this court the applicant makes the following criticism of the High Court judgment.

“It is submitted that the learned judge of the High Court erred in law and in fact in holding that the discovery sought would not

progress the question as to whether the respondent did or did not have evidence before it from which it could reasonably

have made the decision that it made. This ignores the question of the rationality of the impugned decision. The applicant was

given the reason that it did not have enough local knowledge. Yet it now appears as though the winning bidder only satisfies

this criterion itself by using the applicants’ own staff. If this is the case, it would provide a dictionary definition of an irrational

decision.”

In his excellent and very helpful written submissions on behalf of the notice party, its counsel, Mr. Marcus Dowling, answers this

objection in the following way and to my mind correctly.

“The applicant does not explain how it has made the leap from the persons named in the annex being two of a number of

persons with local knowledge to a scenario whereby they were supposedly the only people connected with the notice party’s

bid with connections to the Kilkenny area. There is no evidence in any of the affidavits for the latter proposition and no

reasons are offered in support of it in the course of the submissions. In addition, at no point does the applicant claim that Mr.

O’Keeffe’s affidavit is inaccurate in so far as he states that the persons named in the confidential annex were only two of a

number of persons (and a greater number than the two mentioned in the statement of grounds) whose qualifications the

respondent had regard to in reaching its decision.”

I also find myself in complete agreement with the point made by Mr. Dowling in paragraph 17 of his written submissions which read as

follows:

“Much of the argument made by the applicant is predicated upon the assumption that it is self-evidently unlawful for its

employees to agree to work for the notice party in the event of the notice party obtaining the new licence. It is repeatedly

asserted that this constitutes a breach of the duty of good faith or fidelity employed into all contracts of employment. It is

submitted that even if the persons named in the confidential annex were employees of the applicant, that would not

constitute a breach of their contracts of employment or a criminal conspiracy as is alleged in the course of the submissions.

The applicant’s licence would have determined in October 2003 in any event and in the premises it is submitted that it could

not constitute a breach of contract for its employees to enter into a conditional contract to work for the notice party in the

event of the notice party obtaining the new licence. The repeated assertion that any such employees would have in effect

‘joined in the bid’ of the notice party is a complete distortion of the realities of a bid process that involved detailed written and

oral submissions covering a variety of criteria. The duty of good faith has, it is submitted, limited ambit and it is confined and

should be confined to restricting the employees making secret profits, appropriating their employer’s confidential information

or soliciting customers. In circumstances where any such employees’ contracts would determine automatically in the event

that the applicant did not obtain a new licence it is submitted that it be open to them to lawfully agree to take up employment

with another applicant for that licence. Even if such an agreement could constitute a breach of their contracts with the

applicant then the applicant has failed to demonstrate the relevance of any such breach to these proceedings or how the

existence of such a breach could impugn the respondent’s decision on other grounds.”

I would go a step further, I think that it would be wrong in any circumstances for the respondent in considering the applications to

assume that some named person would commit a criminal conspiracy. One can conceive of circumstances where it might be relevant

for a respondent to concern itself with the existing contract of employment of named persons alleged to be available to the applicant

bidder, but that would be mainly in the context of the credibility of the overall bid. If there was some unusual express clause that

lawfully prevented an employee from joining a rival company even after the franchise had expired, then, the exposure to damages for

breach of contract or injunction or whatever could conceivably be a relevant factor in the credibility of the bid but it is a farfetched

scenario and there is not the slightest evidence to suggest that any such unlikely clause existed here. In my view, the applicant is

engaging in nothing more than an irrelevant and futile fishing exercise in the context possibly of being understandably aggrieved at its

own employees transferring to the successful bidder.

I have not found it necessary so far to touch on the general legal principles applicable to discovery in judicial review. Mr. Cush and

Miss Egan in their written submissions on behalf of the respondent and Mr. Cush in his oral submissions at the hearing of the appeal

rely on a number of authorities including the judgment of Carswell J. (as he then was) in In re Glor na nGael’s Application [1991] N.I.

117 a case relied on in the High Court both in this case and in the case of Carlow/Kilkenny Radio Limited v. The Broadcasting

Commission of Ireland, judgment in which is also being delivered by this court today. In my judgment in that case I made certain

comments about the Glor na nGael case which I need not repeat. It is sufficient to state that the reasoning of Carswell J. cannot be

faulted but rather than suggest (if he did suggest) that there were quite separate principles in relation to discovery in judicial review

applications from discovery in ordinary cases, I would prefer not to make that distinction but to point out that quite obviously in the

nature of things the circumstances in which discovery will be granted in judicial review applications are much narrower than the

circumstances in which discovery will be granted in a plenary action. In a judicial review application the court is only concerned with

how the decision was arrived at and not the merits of the decision. This necessarily restricts appropriate discovery. Which ever way

one looks at it, the end result is the same therefore. I also pointed out in the Carlow/Kilkenny Radio Limited judgment that In re Glor

na nGael has been approved by two subsequent Court of Appeal judgments in Northern Ireland. In the notice party’s written

submissions there is a reference to Glidewell L.J.’s judgment in R. v. Secretary of State for the Home Department, ex parte Harrison

[1987] CA transcript 1246. That is one of the cases referred to by Ó Caoimh J. in his unreported judgment delivered the 21st of

February, 2002 in Shortt v. Dublin City Council as also referred to in my judgment in the Carlow/Kilkenny Radio Limited case. The

passage relied on by the notice party in this case in the judgment of Glidewell L.J. is worth quoting because I believe it also

represents the law in this jurisdiction.

“[Counsel for the Home Secretary] submits that an applicant is not entitled to go behind an affidavit in order to seek to

ascertain whether it is correct or not unless there is some material available outside that contained in the affidavit to suggest

that in some material respect the affidavit is not accurate. If there is such material it may be right to order discovery to

follow that up. But without some prima facie case for suggesting that the affidavit is in some respects incorrect it is improper

to allow discovery of documents the only purpose of which as I have said, would be to act as a challenge to the accuracy of

the affidavit. With that submission also, which is of general application I agree.”

The respondent also relies on a passage in the judgment of Sir Thomas Bingham MR in R. v. Secretary of State for Health, ex parte

London Borough of Hackney [29th of July 1994 unreported] where the former Master of the Rolls stated as follows:

“I think it is broadly true to say that (disclosure) will be regarded as necessary for fairly disposing 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 resolve

the issue fairly, fairly that is to all the parties, without (disclosure) of documents bearing on the issue one way or the other.”

There is further reliance placed by the respondent on the later English case of R. v. Arts Council of England, ex parte Women’s

Playhouse Trust [1998] COD 175 where Laws J. stated:

“The court will not order (disclosure) to test the truth of an affidavit’s contents unless there is material which alerts the court

to a real possibility that the affidavit is inaccurate or in material respects incomplete.”

I do not consider that any of these authorities conflict with the judgment of Sir John Donaldson MR in the earlier case of R. v.

Lancashire CC [1986] 2 All E.R. 941 at 945 relied on by the appellant. That case seems to be largely concerned with administrative

bodies being open and transparent. There is no evidence before this court on this discovery application that the respondent has not

in fact made a full disclosure as to the evidence and materials before it and of its reasons for its decisions subject to its right to

honour the confidentiality of the annex. There is no prima facie case of wrongdoing that would justify discovery.

In the Carlow/Kilkenny Radio Limited appeal, I have explained my view as to the ambit of O’Keeffe v. Bord Pleanála and I do not find it

necessary to repeat it in this judgment.

I should, of course, make it clear that this court is merely dealing with an application for discovery and not with the judicial review

application. I am obviously expressing no views as to the merits or otherwise of that application.

For the reasons indicated, I would dismiss the appeal.