The Supreme Court allowed eircom plc’s appeal against a High Court discovery order requiring it to produce a detailed breakdown of call data in Dome Telecom Ltd’s damages action. The court said Dome Telecom could make a fresh application for the material after the liability issue is determined.
The appeal concerned “Category 9” discovery: information about monthly traffic on each 1800 number, by access method. The Supreme Court accepted that the call data records existed and could be retrieved, even though producing the information in the requested form would require extensive technical work, extra staff and equipment, and significant expense. It rejected eircom’s argument that the order required it to create records that did not exist.
Dome Telecom alleges that eircom imposed mobile access charges and payphone access charges on operators in Ireland, but not on operators outside the State, amounting to unlawful and discriminatory pricing. Eircom accepted that the charges applied to national operators during the relevant periods and that the difference created an opportunity for some operators to compete more effectively. It disputed that the charges were unlawful, saying regulatory and technical constraints had made them necessary. The Supreme Court did not decide that liability dispute.
The judges considered whether the extra detail was proportionate to its likely value in assessing damages. Dome Telecom said traffic by individual number could help show how the charges affected its call-card business and whether customers shifted to competitors. The court noted that discovery already provided to Dome Telecom supported its position that competitors’ traffic grew during the period of alleged discrimination and fell after eircom addressed it. Eircom had also offered to concede that, during agreed periods, all growth in mobile 1800 traffic to international operators, and half the growth in payphone traffic, related to phone-card use.
The court found that the likely benefit of the further, highly detailed breakdown had not been shown to justify its unusual burden and cost at this stage. It therefore allowed the appeal and set aside the order, while preserving Dome Telecom’s ability to apply again after liability is determined. In the payphone case, the judgment reserved the final position pending the eventuality identified in Kearns J’s judgment.