The High Court has ruled that ComReg may pursue enforcement proceedings against An Post over an alleged failure to meet a 94% next-day delivery standard, despite the repeal of the regulations under which the process began.
The dispute arose from a 2004 direction requiring An Post, whose address was given as the General Post Office on O'Connell Street in Dublin, to achieve next-day delivery for 94% of qualifying priority mail posted and delivered within the State.
In July 2009, ComReg notified An Post that it was dissatisfied with progress and gave it until 31 December 2010 to remedy the alleged non-compliance. An Post later reported a 90.3% performance figure for the third quarter of 2010, while separate monitoring for ComReg produced a figure of 85%.
The regulatory regime changed in August 2011 when the Communications Regulation (Postal Services) Act 2011 revoked the earlier 2002 and 2008 regulations.
ComReg subsequently formed the opinion that An Post had failed to comply and decided to ask the High Court for a compliance order and a financial penalty. It proposed a maximum penalty of €11,964,680 for 2010 and 2011.
An Post argued as a preliminary issue that repeal of the regulations deprived ComReg of the legal basis to bring the proceedings, particularly because the formal regulatory opinion was reached after repeal.
Mr Justice Hedigan rejected that argument. He held that by the end of the compliance period, An Post's alleged failure had already given rise to an accrued liability and a corresponding right in ComReg to take enforcement proceedings. Section 27 of the Interpretation Act 2005 preserved those rights despite repeal.
The court also held that the later formation of ComReg's opinion was a procedural step rather than the event creating the underlying right to sue.
Both preliminary questions were answered in ComReg's favour. The ruling leaves the substantive questions of non-compliance and any actual penalty for later determination.