The High Court has finalised a plan for the Commission for Communications Regulation (ComReg) to review data seized from Eircom Limited and ordered Eircom to pay ComReg’s legal costs, including the full cost of a stenographer used at an earlier hearing.
In a judgment delivered on 22 February 2024, Mr Justice Twomey settled the terms of a seven-step plan for identifying relevant material and separating potentially privileged documents. The hearing followed a 2 February judgment that had approved an earlier version of the plan, subject to changes.
The judge said the February hearing was to implement that earlier ruling, not reopen it. Eircom could argue that the revised plan did not comply with the ruling, but could not use the finalisation hearing to seek broader changes it had not pursued at the December hearing. The court adopted ComReg’s revised plan with minor modifications and rejected Eircom’s proposed amendments that went beyond implementing the earlier judgment.
Under the final plan, ComReg will upload the seized data to a review platform, remove material it identifies as clearly irrelevant or administrative, and search for potentially privileged material using terms supplied by Eircom and other agreed steps. Eircom may make submissions on search terms and observe specified steps. If the parties dispute terms for identifying privileged or relevant documents, the plan provides for either side to seek directions from the High Court in specified circumstances. Eircom will also have four weeks after receiving a schedule of refined potentially privileged data to identify documents for which it maintains a privilege claim and explain the basis for each claim.
The court rejected Eircom’s arguments against an order for costs. Eircom had argued that the application was novel, was a test case, and that ComReg’s conduct justified withholding costs. The judge held that the usual rule applied because Eircom had opposed ComReg’s application and lost the key issue: whether Eircom, as the regulated entity, should conduct the search instead of ComReg. The court found no basis in the earlier judgment to treat ComReg’s conduct as grounds to depart from that rule.
The judge also ruled on a prior agreement between the parties to share the stenographer’s costs equally. He held that, absent a contrary agreement, a court order requiring one party to pay the other’s legal costs includes stenographer’s costs. Eircom must therefore reimburse ComReg for all of the stenographer’s costs. Had the court made no order as to costs, the 50:50 agreement would have continued to apply.