The Court of Appeal allowed ComReg to resume the main stage of its spectrum auction, but barred it from notifying winning bidders that they could apply for licences or taking later auction steps while Three’s High Court appeal was pending.
The court announced that decision on 8 November 2022 and gave its reasons in a judgment delivered by Mr Justice Maurice Collins on 21 December. It had heard ComReg’s appeal against a High Court order staying the auction’s main stage until Three’s challenge to ComReg’s auction decision was determined or further order.
Three Ireland (Hutchison) Limited and Three Ireland Services (Hutchison) Limited challenged ComReg’s decision to auction rights across four spectrum bands, including the 700 MHz band. Among its grounds, Three argued that a cap on sub-1 GHz spectrum and the chosen auction format restricted its ability to bid and could distort competition. Those claims remained for the High Court; the Court of Appeal was deciding the interim stay, not the merits of Three’s challenge.
The High Court had found a risk that Vodafone and eir might bid strategically, harming Three, and that information disclosed in an auction could compromise a later rerun. The Court of Appeal concluded that Three had not shown a probability of serious and irreparable harm on either basis. It said the evidence did not establish that harmful strategic bidding was likely, and that the evidence about a compromised rerun was too general and disputed to support the High Court’s finding.
The appeal court also weighed the public interest in implementing ComReg’s decision against the effect of delay. Evidence before it indicated a significant risk that leaving the High Court stay in place could postpone the auction’s main stage until late 2023 or early 2024. It held that the limited restraint it had imposed would preserve the effectiveness of Three’s appeal: spectrum could not be allocated before the High Court ruled.
Three’s underlying appeal was discontinued with the High Court’s permission and ComReg’s consent on 19 December 2022. As a result, the Court of Appeal said its 8 November order had to be discharged. It nevertheless issued its reasons for the decision, which had already been given.