Supreme Court allows appeal dismissing disproportionate discovery order in telecommunications competition dispute.

THE SUPREME COURT

Geoghegan J.

Fennelly J.

Kearns J.

[Nos. 374/375 of 2006]

BETWEEN

DOME TELECOM LIMITED

PLAINTIFF/RESPONDENT

AND

EIRCOM LIMITED

DEFENDANT/APPELLANT

JUDGMENT delivered the 5th day of December, 2007 by Kearns J.

The plaintiff is an Irish company based in Dublin which carries on the business of supplier of call card and other freephone telecommunications services.

The plaintiff’s business operates in the following manner: customers purchase call cards supplied by the plaintiff via retailers. A customer uses a call card

to call a freephone (1800) number from any telephone, including a mobile handset or payphone. When the customer calls the plaintiff’s freephone number

from a mobile handset, the customer is connected first to the mobile network operator’s network, from there to the defendant’s network, from there to the

network of Nevada Tele.com Limited of Hogan Place, Grand Canal St., Dublin 2, a licensed operator pursuant to Section 111(2) of the Postal and

Telecommunications Services Act, 1983 which provides services to the plaintiff, and from there to the plaintiff’s network. The customer then makes

telephone calls using the plaintiff’s network. The freephone number is assigned to the plaintiff by Nevada from a number range assigned to Nevada by the

Director of Telecommunications Regulation (“the Director”). When a customer calls the plaintiff’s freephone number from one of the defendant’s payphones,

the customer is similarly connected to the defendant’s network, from there to the Nevada network which provides services to the plaintiff regarding the

freephone numbers, and from there to the plaintiff’s switch. The customer then makes telephone calls using the plaintiff’s network of switches and

connections, thus benefiting from the competitive call rates offered by the plaintiff.

It is not in dispute that from May, 2000 to date, the defendant has imposed a telecommunications interconnection charge (‘transit charge’) on certain

operators in the State for calls to freephone (1800) numbers originating from both mobile handsets and payphones. The imposition of such charges was

authorised in 2001 by the Director (by Decision D3/01) to compensate the defendant for charges imposed by network operators on the defendant for

originating freephone calls (the ‘MNO origination charges’). The transit charge was thereafter imposed by the defendant on Nevada, which in turn passed the

charge on to the plaintiff. The plaintiff has in turn imposed the charge on its own customers by imposing an additional levy on their calls.

The essence of the plaintiff’s claim, in two sets of proceedings concerning, respectively, mobile phones and payphones, is that the defendant failed to

impose these transit charges evenly, simultaneously or fairly on all operators in the State for calls to freephone (1800) numbers originating from mobile

phones and payphones. In particular Dome contends that for some considerable time following the decision of the Director in March, 2001, the transit

charges were not imposed at all on international operators then operating in the State who, as a result, were able to compete in the Irish market to the

detriment of Irish call card suppliers given that the latter category were immediately compelled to pay the new charges. In particular it is alleged in the

statement of claim in the mobile proceedings that from October 2000 to a date unknown in August, 2001, the defendant failed to impose the transit charges

on international operators to whom it provided access via its subsidiary Eircom (UK) Limited in London. Insofar as payphones are concerned, it is alleged

that transit charges were imposed on national operators in the State from May, 2000 onwards.

The plaintiff accordingly claims in both proceedings a declaration that the actions of the defendant in imposing a transit charge on certain operators in the

State, including the plaintiff, for calls to freephone numbers originated from either mobile phones or the defendant’s payphones, insofar as they fail to

impose the same interconnection charges on all other operators, are:-

(a) Contrary to sections 4 and/or 5 of the Competition Act, 1991 (now sections 4 and 5 of the Competition Act, 2002),

(b) Contrary to Articles 81 and/or 82 of the Treaty of Rome

(c) In breach of the terms of the defendant ’s general telecommunications licence of 1st December, 1998,

(d) In breach of the European Communities (Interconnection in Telecommunications) Regulations, 1998 (S.I. No 15 of 1998),

(e) In wrongful interference with the plaintiff’s economic interests,

(f) In breach of the plaintiff’s constitutional rights.

The plaintiff claims to have sustained a loss of sales and profits as a result of the defendant’s allegedly discriminatory behaviour. This is said to have

occurred in circumstances where competitors of the plaintiff were able to sell call cards in the Irish market at a flat rate per minute without any surcharge

whereas the plaintiff was, in the case of calls to its network from mobile handsets, obliged to pass on a surcharge of 40p per minute on all its customers.

The plaintiff asserts that it had been generally known in the Irish marketplace that Dome was the lowest cost provider of international calling time anywhere

in the world and its call card (“Century”) was, until the events complained of, regarded as the best value for money.

The plaintiff further contends that it planned to develop its telecommunications business, including mobile and residential services, under the “Century”

brand, but has had to put these plans on hold pending resolution of this dispute and an evaluation of the damage suffered by its brand.

In a comprehensive defence, the defendant denies, inter alia, that the plaintiff has any contractual relationship with the defendant and denies that the

plaintiff is a licensed operator within the Postal and Telecommunications Act, 1983 or entitled to be treated as such. The nature of the ‘relevant market’ for

competition law purposes is also put fully in issue, the defendant asserting that, insofar as the plaintiff claims that the relevant market is either the public

fixed telephony network and services market in the State, the leased lines market in the State, the market for payphones in the State or the national

market for interconnection in the State, that any such contentions are denied. The defendant pleads that the relevant market is that catering for

telecommunications customers who wish to make telephone calls to freephone numbers whilst in transit or on the move, which said market includes users

of mobile phones, pay phones and calling card products, and denies that it is in a dominant position in any such market. The defendant further denies that

it imposed transit charges in a discriminatory manner or that the matters complained of by the plaintiff constituted an ‘unlawful subsidy’ to international

operators. It further denies that was in breach of its Telecommunications License or the relevant regulations, or that any action on its part constituted an

infringement of Articles. 81 or 82 of the Treaty of Rome or amounted to breaches of ss. 4 or 5 of the Competition Act, 1991. In particular, it is denied that

the matters complained of amount to the application of dissimilar conditions to equivalent transactions by the defendant, or that the matters complained of

constitute below cost selling by the defendant and/or the imposition of unfair prices or trading conditions by the defendant. The defendant also contends

that if the matters complained of constitute discrimination by the defendant against the plaintiff, the difference in treatment is objectively justified.

The proceedings were commenced in March, 2002. A statement of claim was delivered on 22nd March, 2002 and the defence thereto was delivered on 5th

April, 2002. An amended defence was delivered on 17th June, 2005.

Following the delivery of the statement of claim and delivery of the defence, further particulars were exchanged between the parties. On 23rd December,

2003 the plaintiff’s solicitors wrote to the defendant’s solicitors office seeking voluntary discovery of certain categories of documents. A lengthy exchange of

correspondence followed which ultimately did not lead to any resolution of the issues between the parties as to the parameters of discovery.

In July, 2005 the proceedings came before the judge assigned to deal with the competition list and a motion for discovery was first brought returnable for

19th July, 2005. In the context of that application, the plaintiff sought discovery of documents under twelve different headings. There were numerous

references to court thereafter. For present purposes it is not necessary to state more than that the present dispute ultimately came to be reduced to a

single question, namely, whether the discovery which the defendant made under Category 8 is sufficient for the purposes of the present litigation, or

whether for the proper disposal of the proceedings, documentation sought by the plaintiff under category 9 is also required. The distinction between these

two categories will be evident from the correspondence referred to hereunder.

Detailed submissions were made to McKechnie J. in the High Court in November, 2005 in both the mobile and payphone proceedings. In the aftermath of

that hearing, the court invited the parties to set out clearly why they required the court’s intervention in the process of discovery, and, in particular, the

category 9 discovery. McKechnie J. invited the parties to set out in writing to him the underlying reasons and arguments to justify their respective positions.

By letter dated 8th May, 2006, the solicitors for the plaintiff wrote to the trial judge explaining why Category 9 discovery was necessary over and above any

information furnished under Category 8. Before referring to the letter, it is necessary to recite precisely what was sought by way of Category 9 discovery,

which was the following:-

“All documents relating to the 1800 numbers issued by the defendant to licensed operators and/or international carriers and/or other entities

from 1 July 2000 to the date hereof to include any and all schedules, lists or database setting out the quantity of 1800 numbers issued per

month, the entity to whom they were issued, and the volume of minutes trafficked per month in respect of each 1800 number issued by

reference to access method”.

This request was first notified to the defendant by letter dated 7 April, 2005 and the reasons given for the request were as follows:-

“The plaintiff alleges that it has suffered loss as a result of the discriminatory imposition of the MNO origination charge/ MTC by the

defendant. Access to call details regarding the quantity of 1800 numbers issued by the defendant , the number of minutes trafficked per

number (by reference to access method) and the names of the parties to whom the numbers were allocated would enable the plaintiff to

access the manner in which the MNO origination charge/MTC was imposed. In terms of assessing the quantum of its alleged loss, such

information would demonstrate how in a market highly sensitive to increases in price, they discriminatory imposition of the MNO origination

charge/MTC caused the plaintiff to lose customers to operators who were/are not charged the MNO originators charge/MTC by the defendant.

In short, this category would enable the plaintiff to show a link between its market share and the obligation to pay the MNO origination

charge/MTC to the defendant. The plaintiff believes that expert analysis of these figures will establish a direct and conclusive correlation

between the discriminatory behaviour of the defendant the loss suffered by the plaintiff.”

A similar request was made in respect of the payphone proceedings, save that the information sought related to the imposition of the PAC (Payphone

Access Charge) by the defendant, rather than the MAC /MTC (mobile access/ transit charge). It is manifestly clear in both cases however that the purpose

of this particular request is to enable the plaintiff make out its case on liability (namely that such activity occurred and that it was anti-competitive) and

further to quantify its claim for damages to the greatest degree possible

In his letter to the High Court judge dated 8th May, 2006, the plaintiff’s solicitor stated:-

“Simply put, the explanation of the reasons for seeking this Category 9, which explanation was given to the court on 1 and 2 November 2005,

was that the plaintiff believes that its competitor call card operators, on whom the defendant did not levy the two charges at issue,

experienced a huge growth in volumes of minutes over the period of the discriminatory charging. This would be evidenced if the plaintiff can

identify the volumes of minutes to each 1800 number used as a method of access on those competing call cards. Our counsel explained to

the court that this evidence of volumes of minutes per 1800 number would not only show the level of discriminatory charging, but would

greatly inform any analysis of the plaintiff’s losses as a result of the defendant ’s discrimination, which the plaintiff claims is unlawful on a

number of grounds including breach of competition law.

The plaintiff included Category 9 as an additional category of discovery to Category 8 in which the plaintiff sought the invoices, because the

plaintiff did not believe that the invoices would show the minutes per 1800 number as this would not be the standard documentation in the

industry. The breakdown of minutes per number is the back up information from which the invoice is generated. However, the defendant is

obviously in the best position to know what information is contained on its invoices, and the plaintiff believes that the court relied on the

defendant’s submission that the volumes of minutes per 1800 number would be included in Category 8.

The discovery made to date by the defendant supports this reasoning, and bears out the plaintiff’s belief that its competitors received a huge

growth in minutes when the discrimination by the defendant occurred, which grew to a high point and then dropped away (almost completely in

some cases) when the defendant took steps to address the discrimination as a result of the plaintiff instituting the two actions that are before

the Court.

The court’s attention is drawn to the document included at Appendix 2.1, which was disclosed by the defendant under Category 8 discovery.

In particular, we refer to the figures for USA Worldcom MCI, an international carrier which supported a number of the plaintiff’s competitor call

cards. At the time that the MAC/MTC was imposed on licensed operators in Ireland only, it appears that the volume of minutes trafficked by

the defendant to Worldcom MCI from mobile telephones increased dramatically (from 74,173 minutes in December 2000 to 173,014 minutes

in January 2001, to 521,291 minutes in February 2001, to a high of 1,245,256 minutes in July 2001). The volume of minutes trafficked from

mobile telephones to Worldcom MCI decreased suddenly after July 2001. The plaintiff first wrote to the defendant complaining about the

discriminatory charging on 13 June 2001.

This document, and the further invoices and settlements provided under Category 8 give some details (though not complete or accurate) of

the volume of minutes per telecommunications operator, rather than per 1800 number. The plaintiff is aware in some instances of which

telecommunications operators were supporting its competitor call card operators so that the limited information given to date is of some

utility; however the plaintiff nonetheless requires the volumes of minutes per 1800 number, for the reasons above. Counsel for the defendant

has already confirmed that the requisite information per 1800 number is contained within call data records held by the defendant . The court’s

attention is drawn to sample documents attached at Appendix 2.2 which have been discovered by the defendant and which appear to show

that the defendant is capable of producing this data per 1800 number for its own purposes.

The plaintiff notes that the discovery of Categories 2 & 3 in the Mobile Proceedings, and 3 & 4 in the Payphone Proceedings, was originally

made with redactions that the defendant confirmed were erroneous redactions before the court on 21 March 2006. Those redactions mainly,

although not exclusively, excised all information contained in memos and other internal defendant documents regarding volumes of minutes

per telephone number. The plaintiff has now received the unredacted versions of those Categories.

The plaintiff believes that the court recognised the Category 9 (in particular the latter part marked here in bold) is of most significance to the

plaintiff, and should be allowed for the reasons set out on 1 and 2 November and in the discovery request itself. The defendant indicated to

the court that the invoices/settlements would contain information on the volumes of minutes. The plaintiff believes that it is on this basis that

the court deemed it unnecessary to make any order in relation to Category 9 at that stage.

The court stated that:

‘The true benefit sought by the inclusion of this category is to ascertain the volume of minutes trafficked per month. I am informed on behalf

of the defendant that the invoices referred to in Category No.8 should include this information. Accordingly, on that basis 1 do not propose to

allow this category of documents for the moment.’

Nonetheless, the court recognised the possibility that the invoices/settlements would not include the requisite information, and for this

reason, the court simply adjourned Category 9 to 31 January 2006, the date by which Category 8 was originally due to the discovered.

Subsequently the defendant was granted extensions to this period, such that discovery of Category 8 was only completed by 25 April 2006.

The plaintiff’s understanding is that the court left the door open for the plaintiff to ask for a formal order in relation to Category 9 in the event

that the invoices/settlements did not contain the requisite information on volumes of minutes per 1800 number. The plaintiff does not believe

that the court intended that its decision would necessitate a full re-hearing, but rather was a simple matter of avoiding unnecessarily

burdening the defendant with production of duplicate sets of documents in Categories 8 and 9, because the defendant had made certain

arguments based on its perception of the onerous nature of the discovery requested.

The defendant has adopted an inconsistent and contradictory approach to dealing with the plaintiff’s reasonable inquiries in relation to the

content of invoices in Category 8, and appears to have obstructed the plaintiff’s attempts to have the court deal with the information required

under Category 9 at an early stage, as illustrated by inter partes correspondence and the defendant ’s submissions to the court on 21 March

and 2 May 2006. In particular, the defendant wrote to the plaintiff on 23 February 2006 expressly refusing the plaintiff the information sought

in Category 9.

The defendant’s position now appears to be that the court made no order in relation to Category 9, and that the defendant is only required to

provide the information in Category 8 insofar as it relates to “the volume of minutes trafficked per month”. The defendant appears to base its

position entirely on the words used by the court in summarising that latter part of Category 9 being “the volume of minutes trafficked per

month in respect of each 1800 number issued by reference to access method”. The plaintiff does not believe that the court intended to

curtail Category 9 (as now alleged by the defendant ) to merely a statement of “volumes of minutes per month” as the court gave no indication

of any reasoning for such a curtailment, nor was such a curtailment argued by either party before the court.

The defendant appears to be taking a further step now, by appearing to suggest that the parties have not already engaged in arguments

before the court in relation to Category 9. On 2 May 2006, counsel for the defendant’s argued that these matters required to be put on

affidavit once more, and then be argued before the court again.

The defendant does not appear to accept that the discovery application for Category 9 has been heard and dealt with by the court, and that

the court had ruled that, in principle, the plaintiff is entitled to discovery of the volumes of minutes per 1800 number.

We are concerned that the defendant may be trying to postpone the time when this information must be provided and we believe that this is

because the defendant knows that it will greatly assist the plaintiff’s case. As set out above, a certain amount of information has been given

to the plaintiff through other categories of discovery, and the plaintiff is satisfied that the information required in Category 9 will show a

dramatic increase in traffic flowing to particular 1800 numbers terminating outside Ireland following the discriminatory imposition of both the

PAC and the MAC (as demonstrated by the discovered documents included at Appendix 2). In order to prove that these increases are

attributable to its call card competitors, the plaintiff needs to know the identity of the 1800 number(s) which received this traffic. The only

alternative to granting discovery is for the defendant to accept, as a matter of evidence, that every increase in freephone traffic to

non-Irish carriers in that period relates to call card business. (Emphasis added by me)

The plaintiff wishes to bring it to the court’s attention that the delays by the defendant in making discovery and in particular the provision of

erroneously redacted material, even though subsequently corrected, and the provision of very poor copies, had involved the plaintiff in costs

and time that it should not have had to incur, and of which the plaintiff has made the defendant aware. The plaintiff has incurred the costs of

two days of hearing on discovery of the outstanding categories, including Category 9, on which the plaintiff believed that it had succeeded in

its discovery application. The plaintiff is understandably reluctant to incur the costs of another hearing, in particular given that it does not

have the resources of the defendant and that this litigation is already imposing such a high level of cost on the plaintiff.

The defendant suggested on 2 May that it would be easier to make discovery if the request was limited to certain operators. In order to

facilitate the court and the defendant , the plaintiff is prepared to prioritise its request in relation to particular operators, with liberty for the

plaintiff to re-apply in respect of the operators foregone should further analysis of the discovery indicate that one or more of those foregone

operators did support competitors of the plaintiff.”

The defendant in turn wrote its own letter to McKechnie J. on 12th May, 2006.

The relevant portion of that reply reads as follows:-

“I refer to the letter of the 8th inst (and selected accompanying documentation contained in appendices 1 to 6 thereto) addressed to you by

the solicitors acting for the plaintiff in the above proceedings further to your directions at the most recent hearing of the 2nd inst. concerning

the plaintiff’s motions for discovery in the said proceedings.

On behalf of the defendant, we would, in accordance with your directions, judge, respectfully reply as follows to the said letter.

In the interest of brevity, it is our intention to focus on what would appear to be the main reasons advanced by the plaintiff for seeking

discovery under ‘Category 9’ in both the within proceedings. However, it is necessary straightaway to contradict the account advanced by the

plaintiff of the argument before you judge on 1st November 2005 regarding the said ‘Category 9’ and its interpretation of your judgment of 2nd

November 2005 in respect thereof.

In the defendant’s respectful submission, it emerges clearly from the quotation from your judgment cited on page 3 of the plaintiff’s letter that

you took the view that the documentation that would be necessary for the plaintiff to advance its claims of discriminatory treatment in these

proceedings would be that which would permit it to ascertain the volume of minutes trafficked per month. In this respect, you accepted our

counsel’s submission that the documents to be provided under ‘Category No.8 should include this information’. Notwithstanding the

assertions to the contrary made in the plaintiff’s letter, this submission was correct and the international settlements and voluminous invoices

to national telecommunications operators discovered in the third and fourth affidavits of discovery in the within proceedings of John McKeon

sworn on the 20th March 2006 and on the 27th April 2006 (and copies of all of which have been furnished to the plaintiff) are complete and

accurate and contain all the said information.

The case that was advanced by the plaintiff at the said hearing on 1st November and that is currently being renewed by it is that such

information is not sufficient. Thus, the essential difference between the parties remains whether or not it is necessary for the proper disposal

of the within proceedings for the plaintiff to have information on the volume of freephone minutes trafficked per month in respect of each 1800

number in addition to information on the total volume of such traffic. It is and has been the defendant’s consistent position in its

correspondence with the plaintiff since your aforesaid judgment of 2nd November 2005 (some but not all of which correspondence is

produced by the plaintiff in Appendix 4 to this letter) that you have, as of yet, judge, made no decision or finding as to whether the additional

information sought by the plaintiff (essentially electronic call data records) is discoverable, and if so, whether its discovery would be

necessary for the proper disposal of these proceedings.

It has been and remains the defendant ’s position that the very extensive documentation provided to the plaintiff in respect of discovery under

‘Category 8’, which contains information regarding the total volume of freephone 1800 minutes trafficked from mobile, payphone and fixed line

phones within the State both to national (i.e. domestic) licensed telecommunications operators and international (i.e. non national) operators

during the 66-month period running from August 1999 until April 2005 contains all the information that is reasonably necessary for the plaintiff

to seek to establish that it suffered any damage as a result of the time gap between the imposition by the defendant on national and

international operators, respectively, of the mobile access charge (hereinafter ‘MAC’) and the payphone access charge (hereinafter ‘PAC’).

The plaintiff has been furnished by the defendant , at the latter’s expense, with copies of every invoice issued to national operators during the

period from August 1999 until April 2005, all of which invoices were discovered in the fourth affidavit of discovery of John McKeon sworn on

the 27th April 2006. The said invoices set out clearly the total volume of freephone (mobile, payphone and fixed line) traffic to each national

operator in that period. The information therein contained permits the plaintiff to determine whether the imposition of the MAC on 15th

October 2000, and the PAC on 1st April 2000, on national operators was effected in a discriminatory manner (as alleged by the plaintiff) or

had any appreciable effect on the volume or pattern of freephone traffic to such operators (as is effectively alleged by the plaintiff by way of

its claim of favouritism by the defendant of international operators). The defendant notes that no assertion has been made by the plaintiff in

its letter of 8th May to the effect that the said invoices will not suffice to enable the plaintiff to advance its claims in respect of the effect on

the imposition of these charges on national operators. It is the defendant’s respectful submission that all the requisite information is

contained in the invoices, i.e. they will permit the plaintiff, on proper perusal thereof, to ascertain whether the imposition of the MAC and PAC

on national operators was applied in a discriminatory manner, as compared to international operators, or affected, adversely or otherwise, the

volume of freephone traffic to them. Nothing further would be added by the disclosure of information regarding traffic per number, i.e. call

data records (hereinafter ‘CDRs’).

Contrary to the various assertions to the contrary made by the plaintiff in its letter, the defendant ’s position in respect of ‘Category 9’ has

been at all times consistent. The defendant has not denied that the discrepancy between the time when the defendant was able (for

technical, regulatory and commercial contractual reasons) to impose MAC and PAC charges on national and international operators may have

given rise to an arbitrage opportunity for call card operators (including of course, the plaintiff) to eschew paying the said charges by seeking

to obtain freephone services from international operators, i.e. by obtaining 1800 freephone numbers terminating abroad for use as the

access 1800 number on the call cards marketed by them in the State. This arbitrage opportunity arose at most during the period when the

MAC and PAC were applied to national operators alone, i.e. in the period running, as regards MAC, from 15th October 2000 until 1st October

2001 and, as regards PAC, from 1st April 2000 until 1st December 2002.

It should be noted that the international operators were apprised from July 2001 that the MAC was going to be applied to them. The plaintiff

will be aware from documentation already discovered, particularly in respect of ‘Category 3’ in John McKeon’s first affidavit of discovery sworn

on 3rd November 2005 in the mobile proceedings, that such operators were given the choice of agreeing to permit the defendant to block

calls from mobile handsets in Ireland to their out-of-state terminating freephone 1800 numbers or of paying the MAC. Many opted to have

access from mobile handsets blocked, while those who did not were subjected to the MAC with effect from 1st October 2001, i.e. following

the amendment of their bi-lateral agreements with the defendant . As regards the PAC, the defendant has not denied that it took it longer to

realise that there was an arbitrage opportunity from which some telecommunications operators were benefiting at its expense. Regulatory

approval was sought for the blocking of access to internationally terminating 1800 freephone numbers. The international operators were then

advised on the 18th April 2002 that PAC would be applied to calls from the Defendant s payphones to internationally terminating freephone

1800 numbers, unless the operators agreed to allow the Defendant to block access to such numbers from its payphones. Following the

amendment of the relevant bilaterals, the PAC was introduced on 1st December 2002 and applied retroactivity to 7th June 2002.

Returning to the key periods, i.e. as regards MAC, from 15th October 2000 until 1st October 2001 and, as regards PAC from 1st April 2000

until 1st December 2002, the documents (invoices and international settlements) already discovered under “Category 8” in both sets of within

proceedings permit the plaintiff to ascertain total traffic, both national and international, to 1800 freephone numbers by access method

(mobiles, payphones or fixed line). The plaintiff can, as a result, calculate the total increase in traffic to international carriers that occurred

during the above key periods. It can therefore ascertain the maximum amount of minutes created by the arbitrage opportunity presented by

the availability of freephone numbers terminating outside the State to which, in those periods, no MAC or PAC was applied and to which calls

could be made from mobile handsets or payphones in the State, an opportunity of which, the plaintiff alleges, some of its competitors choose

to avail. Dara O’ Mahony, in paragraph 31 of his affidavit sworn on 6th March 2002 in the payphone proceedings, acknowledges that the

plaintiff itself availed, at least as regard World Com, of such an opportunity. The total market potentially lost to its competitors is therefore

already known to the plaintiff and the defendant fails to understand why the plaintiff requires more particular information regarding traffic to

particular international freephone numbers, when information regarding the traffic to those numbers, and all other such numbers, is a mere

subset of the overall information already contained in the documentation made available to it under “Category 8”. Nothing further would

therefore be added by the disclosure of the CDRs sought by the plaintiff.

The discovery process to date, involving since last November the swearing of four affidavits and the production of literally thousands of

documents, has placed an enormous burden on the defendant and involved the deployment of very considerable resources. As was outlined

to you, judge, by our counsel on the second inst., if you were to order our client to make discovery in terms of “Category 9”, even if it is

limited to “schedules, lists or database setting out […] the volume of minutes trafficked per month in respect of each 1800 number issued by

reference to access method”, a further truly enormous burden would be placed on the defendant .

First of all, as our counsel indicated to you on the 2nd inst., there are, in effect, no ‘schedules, lists or database setting out’ the requested

information. Rather, our client has an extremely complex computerised billing system that electronically generates a CDR for every call made,

24 hours a day, seven days a week across its entire network. Second, if CDRs for all traffic to freephone numbers were to be produced for

the combined period covered by ‘Category 8’ in both the mobile and payphone proceedings, to wit August 1999 until April 2005, as has been

done by the defendant in respect of the invoices and international settlements discovered under ‘Category 8’, every CDR produced by the

defendant for each call made during the entire 66 month-period would have to be extracted. To do this, our client’s technical personnel have

indicated it would be necessary to restore each month in turn to a shadow database. This would take about two days duration by database.

Each month would contain approximately 450 million records and would occupy about 100 GB of disc space: hence only one month at a time

could be recreated. In order to restore the entire 66 months in question, this would require an estimated minimum of 132 days, following

which data analysis would have to be run on the extracted records in order to identify the freephone traffic and separate it from non-freephone

traffic, as only the former would be discoverable and the defendant would plainly be in breach of its obligation of confidentiality to its clients if

it were to provide all the estimated 29,700 million CDRs in question to the plaintiff. Our technical personnel estimate that it would take one

person working fulltime for six to eight months in order to complete this exercise.

The plaintiff asserts (page 3 of its letter) by reference to some sample documents discovered by the defendant in respect of ‘Category 2’ in

the mobile proceedings and in respect of ‘Category 3’ in the payphone proceedings that the defendant is capable of producing data per 1800

number. We are advised by our technical personnel that if a particular number is specified and if the period in respect of which information is

required is limited to a single billing period, i.e. a particular month, the IT process involved in requesting of the existing billing system the

CDRs and creating a hard copy of the information contained therein is greatly simplified. This process is further simplified if information

regarding a particular 1800 number or a series of numbers is required in advance, as occurred in the example sited by the plaintiff in its letter

(page 3). However, in the present case, even if the plaintiff were (as it hints at on page 5 of its letter) to specify those numbers in respect of

which it particularly wished to obtain CDR copies, as its requests would be likely to straddle several months, the task involved for the

defendant in creating the records sought would remain extremely burdensome, especially if, as seems likely, the plaintiff would reserve the

right to come back and continue to request further and further CDR copies.

It is for this reason that the defendant submits that, even if the discovery sought under ‘Category 9’ might be viewed, contrary to the

submissions made above, as being necessary for assisting the plaintiff to make its case in the within proceedings, it would, in the defendant

’s respectful submission, be wholly disproportionate to order that such discovery be made.

Nevertheless, if you reject this submission Judge, the defendant would be inclined to take up the ‘offer’ made by the plaintiff on

page 5 of its letter, where it states:

‘The only alternative to granting discovery is for the defendant to accept, as a matter of evidence, that every increase in free phone

traffic to non- Irish carriers in that period relates to call card business.’

Accordingly, the defendant would be prepared to accept, as a matter of evidence, for the purposes of the mobile proceedings, that,

during the period running from 1st January 2001 until 30th October 2001, inclusive, all of the increases in freephone traffic,(the

increase being measured compared with the average monthly volume of minutes recorded in the quarter prior to the 1st January

2001) from mobile handsets in Ireland to 1800 numbers terminating outside the State, which increases are fully recorded in the

documentation already provided to the plaintiff in respect of ‘Category 8’, may be attributable to use by call card customers of their

cards. (emphasis added by me)

As regards the payphone proceedings, the matter is more problematic. The defendant does not deny, as the plaintiff in effect in footnote 2 to

its letter observes, that the figures for payphone-originating international freephone traffic are included within the figures for fixed-line

originating international freephone traffic in the document created by the defendant setting out details of the outgoing international freephone

traffic which it trafficked in the period August 1999 to April 2005. This document, to which the defendant refers in the said footnote, was

produced by the defendant to assist the plaintiff in analysing the said international freephone traffic. Contrary to the allegations made by the

plaintiff in its letter of 8th inst the defendant is satisfied that the information contained in this document is both complete and accurate.

For the reasons set out in paragraph 10 of the affidavit of John Hall sworn on the 22nd March 2002 on behalf of the defendant , the latter was

unable to distinguish payphone – originating international freephone traffic from fixed – line originating international freephone traffic prior to

June 2002. consequently, for the purposes of the payphone proceedings, the defendant would be prepared to accept, as a matter of

evidence, that, for the period running from 1st September 2001 (when the plaintiff admits, in the affidavit sworn by Dara O’ Mahony

on its behalf on 8th April 2002, that it began applying the PAC to its call cards) until 7th June 2002 (when it became possible to

identify pay-phone originating international freephone calls) that up to 50% of the increase in the monthly volume of fixed – line

originating international freephone traffic above that recorded in the previous quarter, to wit June to August 2001, may be

attributable to use by call card customers of their cards. (emphasis added by me)

In the light of the above, the defendant would respectfully conclude that the discovery sought by the plaintiff under “Category 9” in both of the

within proceedings is unnecessary.”

I have set out this correspondence in full because it gives a clear picture of the parameters of the dispute between the parties. Further, the defendant’s

letter also clarifies the size of the task which category 9 disclosure would place on the defendant. I have also emphasised those portions of the defendant’s

letter which contain an extremely important concession specifically offered by the defendant in response to an indication contained in the plaintiff’s letter

that such an admission or concession would address their major concerns about disclosure in these proceedings.

It would be wrong to not also record that the plaintiff in turn made a generous concession that it would not press for discovery in respect of the records of

national operators, convinced as it was that it could adduce any evidence it required in support of its various claims by calling witnesses from competing

firms in Ireland. The plaintiff further agreed at a later stage to limit the number of international operators in respect of whom discovery was sought to the

eleven main international operators whose names appear in the schedule attached to the order ultimately made by McKechnie J on the 30th August, 2006.

Having regard to the concessions made by the defendant in relation to the arbitrage period mentioned above, the defendant argued that discovery under

Category 9 was not necessary to enable the plaintiff make out its case in the proceedings and was furthermore a wholly disproportionate form of relief

having regard to both the concessions on the one hand and the costly and burdensome nature of the discovery under Category 9 on the other.

The competition judge had evidence that call data records (“CDRs”) existed within the defendant’s computer system, but that the same could not now be

retrieved without exhuming vast numbers of CDRs from the system. While the defendant did operate a billing system for operators and customers by

reference to the CDRs, these bills were generated electronically on a temporary basis only when the charges arose and no longer exist. There was

evidence that the retrieval of such information from the system would impose an enormous burden on the defendant. For each month between August 1999

- April, 2005, there would be approximately 450 million records which would occupy about 100 GB of disk space. Only one month at a time could be

recreated. In order to restore the entire 66 months in question, this would require an estimated minimum of 132 days, following which data analysis would

have to be run on the extracted records in order to identify the freephone traffic and separate it from non freephone traffic, as only the former would be

discoverable and the defendant would in addition possibly breach its obligations of confidentiality to its clients if it were to provide all the estimated CDRs in

question.

In the course of his ruling on the application for Category 9 discovery, McKechnie J. noted that in November, 2005 he had dealt with Category 9 on the

basis that he should not allow that category of documents because he had been informed by the defendant that the information which the plaintiff sought

would be obtainable from Category 8. He accepted, however, that the information furnished under Category 8 did not meet the plaintiff’s requirements

because it did not enable the plaintiff to trace the actual loss of sales of call cards, and that it was necessary for that purpose to trace the traffic by

reference to access method to individual 1800 numbers. He noted that the call data record comprises the duration of the call, the identity number of the

telephone from which the call is made, the identity of the number to which it makes a connection. By use of this information, Eircom would be able to

attribute the calls in question to different call categories and ultimately to the licensed operators to whom the calls are trafficked. He noted that in essence

Dome was seeking to have Eircom use the call data records in such a way as to extract from those records information which when analysed would result

in the creation of detail from which the plaintiff could measure any alleged loss or damage suffered.

With regard to the concessions made by Eircom, the learned trial judge did not accept that they provided a sufficient means of reflecting the increases or

decreases to specific call cards which may have benefited or may have suffered as a result of the alleged discrimination levelled against Eircom in respect

of both payphone and mobile charges.

He further noted that the application for discovery had been opposed on three grounds. The first of one of utility; the second was one of proportionality and

the third was that it imposed an obligation to create documents which otherwise a party subject to an order for discovery would not be required to do.

At p. 15 of his ruling, McKechnie J. stated:-

“In addition I have looked at the pleadings, the scope of the issues raised therein, the particulars insofar as these exist and the replies

thereto and the concessions which have been offered and made on behalf of Eircom. Having considered all of these matters, I remain of the

view that the documents sought in Category number 9 are relevant and are necessary for the purposes of this action.”

He then considered the submissions by Eircom to the effect that the imposition of such an obligation would in effect require them to create a document,

and then proceeded to consider precisely what constituted a document, holding that the use of existing raw data in the manner sought was still within the

required parameters of Order 31 rule 12 of the Rules of the Superior Courts and did not go beyond same. To the extent that any order did go beyond same,

then in the view of the learned trial judge such an extension was so merited.

He also considered the question of proportionality. In this regard he frankly conceded it was “quite difficult” to make a definitive ruling on that particular point

because one would not fully know whether the utility benefit of the information gleaned would be such as to justify the effort involved. However, having

decided the issues of relevance and necessity in favour of the plaintiff he came to the conclusion that any resulting requirement for discovery under

Category 9 could not be regarded as disproportionate. In so directing, he readily accepted that the order placed a burden and “perhaps a heavy burden” on

Eircom.

Having so concluded, McKechnie J. directed that the defendant do within six months from the date of his order make discovery on oath of the following

documents:-

“The volume of minutes trafficked per month from 31st day of August 1999 to 23rd day of December 2003 in respect of each 1800 number

by reference to access method by the defendant to international carriers and/or other entities (to be limited for the time being to those

identified and set forth in the schedule hereto) where the volume of minutes trafficked to that international carrier and/or other entity in any

given month exceeded 5,000 minutes- the documents within the power of the defendant to be created from the defendant ’s raw data and

databases and using the defendant ’s own database.”

The learned trial judge further directed that the defendant do pay the plaintiff the costs of the motion and order when taxed and ascertained. Attached to the

order, as already noted, was schedule 1 which listed a number of international operators who had been identified as the principle operators of relevance to

the issues in the proceedings.

In bringing this appeal the defendant argues that the learned High Court judge erred in law or in fact, or on a mixed question of law and fact, in holding:-

(1) That the power of the High Court to order discovery of documents extends to directing a party to create documents for the purpose of the

within proceedings

(2) That the power of the High Court to order discovery of documents extends to directing a party to create documents that do not exist at the

time the said order is made.

(3) That the creation of the documents directed by the High Court does not impose a disproportionate burden on the defendant /appellant

where in order to comply with the said order it would be required:

• To extract in excess of 20 billion call data records from the tapes on which they are currently stored

• To record the said records onto a parallel database

• To collate and analyse the records on the parallel database in order to collate them with the 1800 freephone numbers the subject

matter of the said order for discovery

• To create therefrom a document containing a report of the total monthly volume of freephone minutes trafficked per month from 31st

day of August 1999 to 23rd day of December, 2003, in respect of each 1800 number by reference to access method by the defendant

to international carriers- limited for the time being to those identified and set forth in the schedule hereto where the volume of minutes

trafficked to that international carrier in any given month exceeded 5,000 minutes;

notwithstanding that the defendant /appellant has made discovery on oath of all invoices raised and issued by the defendant /appellant to licensed

operators, international carriers (including Eircom UK) where the monthly volume of minutes trafficked to each operator exceeded 5,000 minutes (thereby

providing the plaintiff/respondent with details of any significant traffic movements during the relevant period) and that it concedes (for this purpose alone) that

100 percent of the monthly increase in such mobile originating traffic between 1st September 2001 and 31st September 2002 compared with the average

monthly volume of minutes trafficked in the quarter part to 1st September 2001 is attributable to an increase in such freephone traffic to card based

products or services.

SUBMISSIONS OF THE PARTIES

Mr. Anthony Collins, senior counsel on behalf of the defendant, contended that the Rules of the Superior Courts do not confer any power upon the High

Court to require a party to bring documents into existence for the purpose of the proceedings. The terminology of Order 31, rule 12 of the Rules of the

Superior Courts was clear and the unheralded extension of the scope of the rule contended for by the plaintiff could not be made without breaching the

principles of legal certainty and fair procedures. This was all the more so where the Superior Courts Rules Committee overhauled the rules governing

discovery in the relatively recent past without seeing fit to change this aspect of the rules.

What was being sought in the instant case was not limited to the extraction of database backup disks and discovery of relevant information contained

thereon but the compilation, analysis and presentation of information in a form which it is not, and never was, available.

On the issue of proportionality, it was accepted that the material was relevant. However, even though Dome had limited its request to the eleven principle

international operators to which Eircom trafficked international freephone traffic during the relevant period, the defendant for the purpose of complying with

any order for discovery under Category 9 would require the purchase of additional computer hardware costing in the region of €150,000, the creation and/or

purchase of bespoke software to carry out the analysis required and the dedication of at least three to four specialised information technology technicians

from Eircom’s IT department to work at the project over a period of at least six months.

It was further submitted that the fons et origo of the concession made by the defendant in the course of discovery was the assertion by Ms. Whittaker in

her letter of 8th May, 2006, to the High Court regarding the alleged “huge growth in minutes when the discrimination by the defendant occurred, which grew

to a high point and then dropped away” and the further statement that “the only alternative to granting discovery is for the defendant to accept, as a matter

of evidence, that every increase in freephone traffic to non Irish carriers in that period relates to call card business.”

By way of response to this assertion Eircom was prepared to concede that during the period 1st January, 2001 to 1st October, 2001, the entire increase in

mobile originating traffic to such carriers could be attributed to use by call card customers of their cards.

While it was submitted on behalf of Dome that the failure to apply the MAC continued to be felt after 1st October, 2001, Mr. Collins submitted that any

“slippage” was relatively minor after the main arbitrage period had been closed off as a result of the extension of MAC to international telecommunications

operators with effect from October 2001, since when the majority of numbers carrying most of the traffic were either closed to access from mobiles or were

subjected to the MAC.

Mr. Collins submitted that, as any differential charging dropped away almost completely at the conclusion of the arbitrage period and having regard also to

the time, effort and expense required to obtain the discovery sought, it was unnecessary and disproportionate to order discovery under Category 9 having

regard to the concessions offered by Eircom.

Finally, Mr. Collins submitted that in lieu of discovery of the information sought by Dome, his clients were willing to make the data in question - once

retrieved from its backup disks - available for inspection by Dome. Mr. Collins submitted that the learned High Court judge had not given any, or any

adequate, consideration to the alternative of inspection of the data as retrieved and as offered by the defendant.

In reply, Mr. Paul McDermott B.L. argued that the learned trial judge had correctly concluded that the discovery sought was relevant, necessary and

proportionate.

Given that there was no dispute about the relevance of the material, Mr. McDermott submitted that the information obtained from the appellant in

documents discovered under Category 8 was of limited value, not only because it provided limited information, but also because the information therein did

not appear to be accurate, consistent or reliable. It had been conceded by Mr. John McKeon in his affidavit sworn 29th May, 2006 that the invoices or

settlements provided to international operators (i.e. under Category 8) constituted “a highly aggregated invoice” and therefore it was clear that they could not

provide the information required under Category 9. He submitted that in reality there was no substance or foundation to the central objection raised by

Eircom, because the court was only concerned with the retrieval of information that had previously been calculated by the computer.

Without prejudice to this submission, Mr. McDermott urged the Court to take the view that if what the trial judge ordered was to be seen as an extension of

the law, then it was justified. Discovery was not created by primary legislation but rather was “judge - made law” so that, as with any common law principle,

it was open to the court to extend it so as to reflect changing technology.

DECISION

The relevant portions of Order 31, rule 12 of the Rules of the Superior Courts (No. 2) (Discovery) 1999 (S.I. No 233 of 1999) which are of relevance to this

dispute read as follows:-

“(1) Any party may apply to the Court by way of notice of motion for an order directing any other party to any cause or matter to make

discovery on oath of the documents which are or have been in his or her possession or power, relating to any matter in question therein.

Every such notice of motion shall specify the precise categories of documents in respect of which discovery is sought and shall be grounded

upon the affidavit of the party seeking such an order of discovery which shall:

(a) verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs;

(b) furnish the reasons why each category of documents is required to be discovered

(2) On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or

not necessary at that stage of the cause or matter…(emphasis added)

(3) An order shall not be made under this rule if and so far as the Court shall be of the opinion that it is not necessary either for disposing

fairly of the cause or matter or for saving costs….”

I have emphasised the linking in subparagraph 2 of the concept of ‘necessity’ to the particular stage of the proceedings at which discovery is sought

because it is of particular relevance to my decision as detailed hereunder. Before proceeding further, however, it is important to refer to other Rules of the

Superior Courts which have a particular relevance in this matter.

Special rules in relation to competition proceedings were introduced in this jurisdiction by the Rules of the Superior Courts (Competition Proceedings) (S.I.

130 of 2005) and the same were opened to the Court during the hearing of this appeal. In many respects the Competition Rules reflect and acknowledge the

complexity of competition proceedings and are clearly designed to simplify to the greatest extent possible the resolution of issues arising in such cases.

Thus the Competition Rules provide a definition of “competition proceedings” and rule 4, paragraph (1) requires that competition proceedings, “and any

motions or other applications in competition proceedings” shall be heard in the competition list by the judge assigned by the President of the High Court to

hear and determine proceedings in the competition list. That judge will invariably be a judge with some experience of the arduous demands of competition

law.

The Rules provide for various pre-trial procedures which emphasise efficiency and the requirement to keep costs down. Thus rule 5 provides:-

“A Judge may, at any time and from time to time, of his own motion and having heard the parties, give such directions and make such

orders, including the fixing of time limits, for the conduct of proceedings entered in the Competition List, as appears convenient for the

determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings”

Rule 4, para. (2) provides that either party may, prior to the close of pleadings, in the case of plenary proceedings or prior to the completion of the filing of

affidavits in the case of proceedings to be heard on affidavit, bring an application to the judge in charge of the competition list to fix a date for an initial

directions hearing in the case. At any such initial directions hearing, rule 6 provides that the judge may give various directions to “facilitate the

determination of the proceedings”, including directions for the defining of issues, directions for the delivery of interrogatories, or discovery or inspection of

documents, directions that experts consult with each other for the purpose of identifying the issues in respect of which they intend to give evidence and

possibly agreeing on evidence which they intend to give on those issues. Rule 6 (x) also provides for the exchange of documents or information between the

parties or for the transmission by the parties to the registrar of documents or information electronically, on such terms and subject to such conditions and

exceptions as a judge may direct.

The Rules further provide that the judge may direct that the proceedings be subject to case management, fix a date for a case management conference,

and give any further directions for the completion prior to such conference of such steps in the proceedings as he considers appropriate, including the

preparation of a case booklet which contains an agreed outline of the case and events and issues that are not in dispute.

Rule 27 also provides that the parties before trial should serve upon the other party or parties a written statement outlining the essential elements of the

evidence of any witness either as to fact or of an expert. The Rules under rule 20, para (1) (b) also impose upon the parties an obligation to file a case

summary comprising an agreed outline of the case and sequence of relevant events not in dispute, a list of issues which are not in dispute, a list of the

persons principally involved in the matters or events the subject of the proceedings and, where appropriate, a glossary of technical terms which are likely to

be used in the course of the trial.

Put shortly, the Rules are designed to expedite and facilitate the speedy resolution of competition proceedings. By obvious and necessary implication, an

ancillary purpose must be to minimise costs.

If these are appropriate control mechanisms for competition proceedings, it seems clear to me that the first question to be addressed in this case, which

concerns a case assigned to the Competition list, is whether or not discovery of Category 9 documentation, either by the creation of a document or

otherwise, is in fact necessary and/or proportionate bearing in mind in particular that the disputed category 9 material seems now to relate only to the

quantification of the plaintiff’s damages having regard to the factual concessions made by the defendant to facilitate disposal of the core issue of liability

and having regard also to the undoubtedly burdensome nature of the form of discovery sought.

Of particular relevance to the facts of this case are the observations of Fennelly J. in Ryanair p.l.c. v Aer Rianta c.p.t. [2003] 4 I.R. 264 when he stated as

follows at 277:-

“The court, in exercising the broad discretion conferred upon it by O. 31, r. 12 (2) and (3), must have regard to the issues in the action as

they appear from the pleadings and the reasons furnished by the applicant to show that the specified categories of documents are required. It

should also consider the necessity for discovery having regard to all the relevant circumstances, including the burden, scale and cost of the

discovery sought. The court should be willing to confine categories of documents sought to what is genuinely necessary for the fairness of

the litigation. It may have regard, of course, to alternative means of proof, which are open to the applicant. These may, no doubt, include the

possible service of notices to admit facts or documents. But there are two sides to litigation. The behaviour of the opposing party is relevant.

That party may, for example, have made or may offer to make admissions of facts, and thus persuade a court that discovery on some issues

is not necessary”

These comments in relation to necessity and other relevant considerations received further approval from this Court in Framus Ltd & Ors v CRH plc & Ors

[2004] 2 I.R. 20. In the course of his judgment in that case Murray J also stressed that the notion of proportionality must attach to the concept of necessity,

stating as follows (at p 38):-

“It seems to me that in certain circumstances a too wide ranging order for discovery may be an obstacle to the fair disposal of proceedings

rather than the converse. As Fennelly J. pointed out (ie. in Ryanair plc v Aer Rianta [2003] 4 I.R. 264), the crucial question is whether

discovery is necessary for “disposing fairly of the cause or matter”. I think it follows that there must be some proportionality between the

extent or volume of the documents to be discovered and the degree to which the documents are likely to advance the case of the applicant or

damage the case of his or her opponent in addition to ensuring that no party is taken by surprise by the production of documents at a trial”.

It seems to me that these observations apply a fortiori where factual admissions which may permit the resolution of the case in its most significant aspects

are made by the party from whom discovery is sought. To put it another way, the assessment of what is necessary or proportionate must take account of

any factual admissions or concessions made by either or both the parties, notably where liability is totally in dispute and where that issue can conveniently

be first determined as a result of admissions or concessions made.

Insofar as the judgment of the learned High Court judge is concerned, it does not indicate why the concession offered by the defendant was not regarded as

sufficient to allow liability in this matter to be determined - at least insofar as the mobile telephone proceedings are concerned. It will be borne in mind in

this regard that the concession offered by the defendant in respect of the period from January to October, 2001 concedes that “100%” of the increase in

freephone traffic invoiced to the international operators is attributable to the imposition of the MAC charge. This is as much as the plaintiff could ever

establish in evidence, be there discovery under Category 9 or not in respect of this period. It is true that the situation with regard to payphone usage

remains open having regard to the fact that payphone charges are conflated with fixed line charges in the Category 8 discovery and those elements have

not yet been segregated from each other. However, no such difficulty arises in the mobile proceedings and the period of the concession (i.e., ten months)

strikes me as more than adequate to allow the plaintiff make out its case on liability if it can. I am also unhappy that the order in question appears to have

been made without any clear indication being given to the judge as to the cost and expense involved in so doing, although in the course of the hearing

before him and perhaps more particularly in the hearing before this Court, the defendant put forward estimates for the huge amount of time, effort and cost

involved in complying with Category 9. It would be quite wrong in my view not to acknowledge the cost and time/effort involved in the gargantuan task which

an order under Category 9 would impose on the defendant, notably when that task is weighed against the limited fruits which might emerge from

compliance, confined as those fruits would be to quantum of loss only and then only to a period when Eircom was ‘closing off’ the problem. In this context

one must also bear in mind that on the evidence Dome itself placed before the High Court, only a small proportion of its customers used the 1800 freephone

number from mobile and payphone in order to access stored telephone credit, that the vast preponderance of user was on fixed line calling where no

charges were imposed. Thus while the material sought under Category 9 is undoubtedly relevant, can it be described as ‘necessary’, or can it be so

described at this stage in the proceedings?

It can not always be the case that relevance creates necessity, because otherwise there would be no need to have the two separate concepts of relevance

on the one hand and necessity on the other. Necessity is the true threshold where issues of proportionality must be assessed and clearly the more

necessary the document is the more proportionate it will be for the requesting party to obtain discovery. It seems to me that the facts and circumstances of

the particular case must then also be considered. Is it a case which conveniently lends itself to be decided in modules in the interests of efficiency and

cost-saving? Examples of litigation which lend themselves to such division might typically include, for example, medical negligence cases where liability is

hotly contested. The resolution first of the liability issue may well dispose of the entire proceedings. In such circumstances – which also arise here – can

cumbersome discovery which now relates only to a certain aspect of quantum be regarded as necessary and proportionate at this point?

It would in my view be wrong to assess issues of necessity and proportionality separately from the liability issue. Liability must be determined before any

question of damages arises. While there has to date been no agreement between the parties thus far as to what constitutes the relevant market for the

purpose of these proceedings, the liability issue itself appears, despite the technical issues, relatively straightforward – and all the more so having regard to

the admitted facts in the mobile proceedings. If there is no finding of anti-competitive behaviour against Eircom in respect of the admitted conduct, that will

effectively dispose of the entire case.

I see no good reason why the plaintiff should not proceed to seek a determination of the liability aspects of those proceedings on foot of the important

concession which the defendant has made (at the express instigation of Dome itself), namely, that over a ten month period in 2001, 100% of the increase in

traffic through the major international operators (again, as identified by Dome) in respect of mobile phone traffic is attributable to the imposition of the MAC

on national operators. If the plaintiff is successful in establishing a breach of competition law and, more particularly, an alleged abuse of a dominant position

by Eircom, then that will be the appropriate time to apply for more wide ranging discovery to enable quantum of damages to be assessed. If the plaintiff is

unsuccessful, the requirement to turn up information about what occurred at the expiration of the arbitrage period, when any problem was being

progressively closed off, will simply not arise.

Accordingly, and making my decision on essentially pragmatic grounds, I would defer any decision on discovery of Category 9 documentation herein until

the issue of liability in the mobile phone case has been determined. In reaching this view, I would not wish to be taken as resiling in any way from the

commonsense views expressed by McCracken J. in Ryanair p.l.c. v Aer Rianta c.p.t. [2003] 4 I.R. 264 to the effect that competition cases generally may

have the special feature that anti-competitive practices may be kept secret and that any documents relating to anti-competitive behaviour are more likely to

be in the possession of the party engaging in that behaviour. I simply just do not see any particular disequilibrium arising on the facts of this case given that

the facts alleged to be anti-competitive are known and not disputed – at least not in the mobile proceedings over the period of the concession.

One is of course extremely reluctant to trespass on the discretion of a judge who makes rulings in the course of case management. However my decision

is in no way critical of anything McKechnie J said or did and is intended solely to facilitate the High Court by reducing the burden on the trial judge when

the matter comes to trial.

I would therefore favour allowing the appeal on the basis that the relief granted by the High Court was, in the particular circumstances, both unnecessary

and disproportionate at the stage of the proceedings at which it was granted. In the event that the plaintiff succeeds on liability in the mobile proceedings, it

should then be at liberty to renew the application for Category 9 discovery in the High Court if same is required for the purpose of assessing damages either

in those proceedings or in the payphone proceedings. In the circumstances I think it is appropriate to allow the appeal in the payphone proceedings also.

Having regard to the considerations underpinning this judgment, I do not find it necessary at this point to decide whether or nor the granting of discovery in

respect of Category 9 involves the ‘creation’ of a document or whether discovery in the form sought goes beyond what is envisaged or is permissible under

Order 31 of the Rules of the Superior Courts. Given that the process of inspection appears also to raise huge technical and other problems, including not

only the retrieval and processing of data, but also the policing, supervision and editing involved in the exercise, I would thus also refrain from making a

decision now on whether the offer of inspection by Eircom could provide a viable alternative to the discovery sought.