The High Court refused Vodafone Ireland Limited’s application for costs against Eircom Limited after Eircom and the Commission for Communications Regulation (ComReg) settled Eircom’s appeal over universal service funding.
Eircom had challenged ComReg’s January 2014 decision on its application for funding for the 2009–2010 period. It sought to have the decision set aside in part and argued that the cost of its universal service obligations was an “unfair burden”. It also sought a direction for a cost-sharing mechanism, or alternatively a reconsideration by ComReg.
Vodafone joined the appeal as a notice party in March 2014. It said a sharing mechanism could impose a financial burden on it and that ComReg might not fully represent its interests. The appeal had been heard for two weeks in July 2014, with further hearing time expected, before Eircom and ComReg settled around 21 October. Under their agreement, Eircom withdrew the appeal and both parties bore their own costs. They also preserved their positions for any future challenge involving a ComReg decision on Eircom’s funding application.
Vodafone argued that Eircom should pay its costs because the appeal’s withdrawal left ComReg’s decision in place. Eircom opposed the application, pointing out that Vodafone had supported Eircom on some issues and ComReg on another, and that the sharing mechanism had not been central to the dispute.
Mr Justice Cregan said the settlement could not be assessed by isolating Eircom’s withdrawal from the other agreed terms. The appeal had not produced a decision on its merits, so there was no “event” for costs to follow under the usual rule. The judge also distinguished earlier cases where notice parties received costs after a full hearing or where proceedings became moot for reasons outside the parties’ control.
The judge said it had been reasonable for Vodafone to seek joinder, but that did not guarantee recovery of its costs. Because Vodafone had sought to join of its own motion to protect its commercial interests, it had to bear the risk that Eircom and ComReg might settle without making provision for its costs. The court refused Vodafone’s application. It did not determine the merits of Eircom’s funding challenge.